State v. Shelton

• Decision Date: 14 April 2021
• Docket Number: #29263
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Shawn Michael SHELTON, Defendant and Appellant.
• Court: South Dakota Supreme Court

958 N.W.2d 721

STATE of South Dakota, Plaintiff and Appellee,

v.Shawn Michael SHELTON, Defendant and Appellant.

#29263

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS JANUARY 11, 2021

OPINION FILED April 14, 2021

JASON R. RAVNSBORG, Attorney General, SARAH THORNE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

LUCI YOUNGBERG, Yankton County Public Defender, Yankton, South Dakota, Attorneys for defendant and appellant.

KERN, Justice

[¶1.] Following a jury trial, Shawn Michael Shelton (Shelton) was convicted of three felony drug offenses in connection with the sale of methamphetamine to a confidential informant (CI). He appeals, alleging that the circuit court abused its discretion by denying his motions to admit a written agreement with an informant and two demonstrative exhibits and for a new trial. He also contends that the sentence he received was cruel and unusual in violation of the Eighth Amendment. We affirm.

Facts and Procedural History

[¶2.] Detective Joseph Erickson (Detective Erickson) of the Yankton Police Department and Special Agent Ryan Pennock (Agent Pennock) of the South Dakota Division of Criminal Investigation (DCI) approached a 25-year-old woman to work as a CI to make controlled purchases of methamphetamine in the Yankton, South Dakota community. Before being enlisted to work as a CI, the woman was regularly contacting Shelton and purchasing methamphetamine from him on a weekly basis. She had previously used methamphetamine with Shelton, who sometimes assisted her in taking it intravenously. As a CI, she was instructed to negotiate purchases in the same manner as she had done for personal use in the past. She signed a standard written agreement including a statement that she would refrain from using illegal substances. Further, by oral agreement, she was to receive $200 in compensation for completing each of the five controlled purchases, totaling $1000.

[¶3.] On the evening of July 10, 2018, Detective Erickson, Agent Pennock, and other officers attended a law enforcement briefing to prepare a plan for the CI's controlled purchase of methamphetamine from Shelton that night. Detective Erickson and Agent Pennock made contact with the CI near a middle school, located 353 feet from Shelton's home in Yankton. The CI had been communicating with Shelton via Facebook Messenger and made arrangements to buy half a gram of methamphetamine for $50. After discussing safety measures and the route she would take to and from Shelton's home, law enforcement searched the CI and equipped her with a transmitting and recording device. They gave her $50 of pre-recorded, drug-buy money from the DCI Controlled Buy Fund to use in the transaction and watched her walk in the direction of Shelton's home. Yankton County Deputy Sheriff Darren Moser (Deputy Moser) was parked across the street to conduct surveillance and render aid if necessary.

[¶4.] The CI spoke with Shelton on the phone as she approached his home. He expressed concern that someone had dropped her off, which she denied, saying she was on her way from babysitting. When the CI arrived, Shelton was outside sweeping the sidewalk. He was high and paranoid and said that cars had been circling the area. Although the CI reported not seeing anything on the sidewalk, she did see a substance she believed to be methamphetamine scattered on the stairs going down into his basement apartment.

[¶5.] Once in the apartment, Shelton had the CI put her two phones in a clear plastic container, which he then placed under a chair on the far side of the living room. She told him her boyfriend had given her one of the phones. He still suspected she was wired and wrote a note to that effect. She pulled up her shirt to prove that she was not wearing a wire. As a result of Shelton taking her phones, law enforcement lost the ability to monitor what was happening for nearly eight minutes. Police Sergeant Monty Rothenberger (Sergeant Rothenberger) was dispatched to Shelton's home to check on the CI's well-being. During this time frame, the drug transaction occurred. When Sergeant Rothenberger knocked, the CI retrieved her phones and then answered the door. Sergeant Rothenberger asked questions under the pretense of looking for a neighbor. Seeing that the CI was uninjured, he went on his way, after which the CI left Shelton's home for the post-buy meeting location.

[¶6.] Upon her arrival, the CI was debriefed by Detective Erickson and Agent Pennock about the transaction. She told the officers that she believed that the substance on the stairs was methamphetamine, possibly as much as two or more grams and that Shelton had likely dropped it because he was so high. The CI explained that after she placed the phones in the plastic container, Shelton shaved off and weighed a portion of methamphetamine that came out of "his pocket in a uh like a round container like uh, like a tobacco container with those speckled packets in it." Detective Erickson asked if she meant a chewing tobacco tin, and she said "yeah." She also explained that just before Sergeant Rothenberger knocked on Shelton's door, Shelton placed the methamphetamine in a baggie. The CI gave him the drug buy money and took the baggie. She reported that she declined an offer to use it with him and did not arrange any future deals. Detective Erickson performed a standard search of her person and confirmed that she had turned over all of the methamphetamine she had acquired. The officers stopped the recording, paid her $200, and drove her to another location. The South Dakota Public Health Laboratory subsequently tested the contents of the bag and confirmed that the substance was forty-eight hundredths of a gram of methamphetamine.

[¶7.] Shelton was in the custody of the Department of Corrections serving separate sentences when he was indicted by a Yankton County grand jury for possession of a controlled substance, in violation of SDCL 22-42-5 ; distribution of a controlled substance, in violation of SDCL 22-42-2 ; and distribution of a controlled substance in a drug free zone, in violation of SDCL 22-42-19. The State also filed a habitual offender information alleging that Shelton had seven prior felony convictions, subjecting him to a two-level enhancement for each of the charges levied against him. SDCL 22-7-8.1.

[¶8.] A two-day jury trial began on December 12, 2019. Before calling the first witness at trial, the State advised the court that it had prepared a transcript of the tape of the CI's interaction with Shelton on July 10, 2018. The State requested permission for the jury to follow along with the transcript while the audio recording was played. The court not only granted the request but ordered that both the tape and transcript would be admitted into evidence and sent with the jury for their use during deliberations. Shelton agreed that the transcript was accurate and had no objection to the transcript being admitted for the jury's consideration.

[¶9.] Prior to the time that the tape was played, however, the court, on its own initiative, revisited the issue and changed its ruling on the admissibility of the transcript. After reviewing caselaw and South Dakota Pattern Jury Instruction 4-1-5,¹ the court ordered that the transcript would be collected after the tape was played and not admitted as substantive evidence.

[¶10.] The court also presented the parties with a proposed limiting instruction advising the jury that the recording itself was the primary evidence and the transcript merely a demonstrative aid. Neither party objected to the instruction. Before the audio recording was played, the court read the instruction to the jury and gave each member a written copy.

[¶11.] Shelton elected not to testify at trial, instead developing his defense that the CI brought the drugs to the transaction through his cross-examination of the witnesses.² At the close of the evidence, Shelton moved for a directed verdict, which the circuit court denied, and the case was submitted to the jury. Despite the court's ruling to the contrary, the transcript was inadvertently included with the other exhibits and sent back to the jury. The jurors wrote a note to the bailiff asking for a device to listen to the recording again but reached a verdict before the court responded. The jury convicted Shelton of all three counts.

[¶12.] Shelton filed a motion for a new trial, arguing that he was prejudiced by the circuit court's error. He contended that allowing the transcript to go to the jury violated the court's ruling and was contrary to law. At a January 2, 2020 hearing on the motion, the circuit court denied Shelton's request for a new trial, stating that it would have allowed the transcript to go back with the jury if the parties had so requested because the audio was garbled and difficult to understand without it.

[¶13.] Shelton admitted to six of the seven prior felony convictions listed in the habitual offender information. The court ordered a presentence report and scheduled a sentencing hearing. The court sentenced Shelton to serve fifteen years for the possession and distribution counts, to run concurrently to each other and to the sentences he was currently serving.³ For the offense of distribution in a drug free zone, the court sentenced Shelton to serve twenty-five years, with fifteen years suspended, to run consecutively to his other sentences.

[¶14.] Shelton appeals, raising three issues which we reformulate as follows:

I. Whether the circuit court abused its discretion by refusing to admit the written CI agreement and precluding demonstrative exhibits.

II. Whether the circuit court abused its discretion in denying Shelton's motion for new trial.

III. Whether Shelton's sentence constitutes cruel and unusual punishment.

Issues

I. Whether the circuit court abused its discretion by refusing to admit the written CI agreement and precluding demonstrative exhibits.

[¶15.] Shelton contests two evidentiary rulings made...