State v. Smithers

• Decision Date: 15 October 2003
• Docket Number: No. 22623.,22623.
• Citation: 2003 SD 128,670 N.W.2d 896
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jeremy SMITHERS, Defendant and Appellant.
• Court: South Dakota Supreme Court

670 N.W.2d 896

2003 SD 128

STATE of South Dakota, Plaintiff and Appellee, v. Jeremy SMITHERS, Defendant and Appellant.

No. 22623.

Supreme Court of South Dakota.

Considered on Briefs August 25, 2003.

Decided October 15, 2003.

Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, for plaintiff and appellee.

Thomas M. Issenhuth, Madison, for defendant and appellant.

ZINTER, Justice.

[¶ 1.] Jeremy Smithers was convicted of nine drug related offenses including possession and distribution of methamphetamine.¹ He appeals contending that the trial court erred: 1) in allowing the State to present evidence of the discovery of methamphetamine in another county, when the test results of that evidence was not disclosed in discovery; and 2) in finding adequate evidence to corroborate accomplice testimony. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Chad Blasius, an acquaintance of Jeremy Smithers, lived at a house in Madison, which is in Lake County, South Dakota. One of Blasius's roommates, J.M., was under the supervision of juvenile corrections agent Ryan Smit. Smit stopped at the residence around 11 p.m. to conduct an alcohol check on J.M. Because J.M. was not home, Smit returned to the house about 11:30 p.m. to try again. This time, Smit smelled marijuana in the house. He reported his discovery to the Madison Police Department, and preparations were made to obtain a search warrant.

[¶ 3.] Jeremy Smithers got off work at around midnight that evening. His girlfriend, Amber Alfson, and Blasius picked up Smithers from work. Blasius drove to his home, dropped Alfson off, and he and Smithers proceeded to Colman, which is located in Moody County, South Dakota. They went to Colman to purchase an "eight ball" (3.5 grams) of methamphetamine.

[¶ 4.] Once in Colman, Blasius and Smithers proceeded to the home of Smithers' friend, "Rebecca." Smithers paid Rebecca $200 for the methamphetamine. Blasius and Smithers talked about smoking some of it and cutting the rest into smaller amounts to sell. Blasius testified that he had the methamphetamine in his possession as he and Smithers drove back to Blasius's home in Madison.

[¶ 5.] When they returned, Blasius and Smithers went upstairs to Blasius's bedroom. They were accompanied by Alfson and Marin Moran, who had been at the house while Blasius and Smithers were in Colman. The methamphetamine was put into tinfoil, and the four smoked it through a method called "freebasing."

[¶ 6.] About the time they started freebasing, law enforcement officers entered the residence by executing a "no-knock" search warrant. The officers first secured the lower level of the house and then proceeded upstairs. As the officers got closer, Alfson flushed the methamphetamine down the toilet. Smithers, believing that a police search was a joke and that the police were not really there, reached into the toilet in an attempt to retrieve the drugs. He was not successful. When he came out of the bathroom, he was handcuffed by police, and they observed that his hands were still wet. After securing those present at the home,² the officers continued their search.

[¶ 7.] The search did not result in the seizure of the methamphetamine from the Madison residence. It did, however, yield drug paraphernalia that could be used for the use and sale of methamphetamine, including: a digital scale, sandwich bags, razor blades, a mirror, a hollowed-out barrel of a pen, tinfoil, a glass pipe, pieces of plastic, and cut corners of sandwich bags.

[¶ 8.] Detective Vilhauer, one of the officers participating in the search, testified to the drug-related use of these items. He indicated that the razor blades would have been used to "chop [methamphetamine] down to smaller fragments" so that it could be smoked or ingested. Detective Vilhauer also indicated that small pieces of plastic would be used to package methamphetamine and cocaine in "bindles." He finally testified that "[i]n controlled substances or powders such as cocaine or methamphetamine, very often the corners [of the bags] are cut away, then that small bag is used to weigh and tie small amounts of meth or coke."

[¶ 9.] Around the time of the search, Smithers, Blasius, Alfson and Moran all gave inculpatory statements to Vilhauer. They also submitted to urinalysis. Smithers and Alfson tested positive for THC and methamphetamine. Blasius tested positive for THC, methamphetamine, and amphetamine. Moran tested positive for THC. [¶ 10.] Based on the Madison (Lake County) search and the statements given, a search warrant was also obtained for the residence in Colman (Moody County) where Blasius and Smithers purchased the methamphetamine. The Colman search led to the discovery of methamphetamine, more arrests, and separate charges in Moody County.

[¶ 11.] One of the suspects arrested in the Colman search was represented by Philip Parent. Parent worked for the same law firm as Smithers' attorney, Thomas Issenhuth. In fact, Parent assisted in the representation of Smithers by appearing with Smithers at two separate court hearings. Parent also helped make arrangements to have an independent laboratory test of Smithers' urine sample. Parent finally engaged in some discovery from the Lake County State's Attorney's Office regarding Smithers' case. Parent wrote the Lake County State's Attorney asking whether any plea bargains had been made in cases relating to Smithers, including any defendants in either Lake County or Moody County. Parent asked for this information pursuant to Smithers' original discovery request.

[¶ 12.] Parent also signed a number of documents indicating that he was participating in the representation of Smithers. He signed documents titled "Defendant's [Smithers'] Response to State's Discovery Motion," and "Defendant's [Smithers'] Response to State's Motion for Assessment of Costs." He signed these documents as "Attorneys for Defendant [Smithers]." Each document also contained a preamble stating, "Comes now Jeremy Smithers, ... by and through Philip R. Parent, of Arneson, Issenhuth & Parent, LLP, attorneys for the above named Defendant...." Parent also sent a letter to the Lake County State's Attorney regarding a DNA analysis of Smithers' urine sample. In that letter, Parent referred to Smithers as "our client."

[¶ 13.] Pursuant to Smithers' discovery request, the Lake County State's Attorney's Office provided Issenhuth with all of the documents in that office's possession. That included the reports of Detective Vilhauer's interview with Smithers, Vilhauer's report regarding the execution of the Madison search warrant listing the specific items recovered and the suspects taken into custody, and a copy of the written statement Smithers provided law enforcement.

[¶ 14.] The Lake County State's Attorney's Office also provided Issenhuth with the only information it possessed regarding the Colman search. That information included a copy of a police narrative which described the search, the officers involved in the search, and the suspects arrested as a result of the search. The information also included a written report from Detective Vilhauer, which described the details of the execution of the Colman search warrant and the illegal items discovered as a result. That information clearly indicated that methamphetamine was believed to have been found in the Colman search.

[¶ 15.] The discovery information also indicated that Vilhauer could be a witness to the Colman search and what was seized there. Vilhauer was a potential witness because the report indicated that Vilhauer had found a tin in the Colman bedroom:

In that tin was some marijuana paraphernalia and what appeared to be marijuana seeds, along with a little brown box. Inside the little brown box was what appeared to be one gram and a small plastic baggy of a white powdery substance that appeared to be methanphetamine [sic].

The report further described the items seized in the Colman search as "cash, marijuana, several small plastic baggies containing a white powdery substance that appeared to be meth, as well as two larger solid rock pieces...."

[¶ 16.] The Lake County State's Attorney's Office possessed no other documentation relating to the Colman search or the testing performed on the drugs seized in Colman. The reports concerning the Colman search and any accompanying laboratory tests were in the possession of the Moody County authorities because the charges that arose from the Colman search were being handled by the Moody County State's Attorney.

[¶ 17.] However, as previously mentioned, one of the defendants charged in Moody County was represented by Parent. Therefore, in the course of that representation, Parent received the reports of the Colman search from the Moody County State's Attorney's Office. The specific information Parent received from Moody County authorities included a copy of the Evidence Inventory and Receipt of the Colman search; a copy of the State Chemist's report showing positive test results for cannaboids and methamphetamine in the urine sample of "Rebecca" and the Moody County defendant represented by Parent; and, a copy of a Lab Data Collection form used in connection with the suspected methamphetamine. Parent was also provided with a report from State Chemist Roger Mathison on tested items from the Colman search. The report revealed that the evidence seized tested positive for methamphetamine. Parent finally had the narrative reports from Detective Vilhauer and the Colman Police Chief. Those reports listed the law enforcement officers who participated in the execution of the Colman search warrant, the Colman suspects, and again, the illegal items seized in Colman.

[¶ 18.] At Smithers' trial, Detective Vilhauer was permitted to testify, over Smithers' discovery objection, that methamphetamine was found in the Colman search. The State also introduced accomplice testimony from Blasius, Alfson and Moran. After trial,...