State v. Stevens

• Docket Number: 30145-a-SRJ
• Decision Date: 17 January 2024
• Citation: 2024 S.D. 3
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. TODD W. STEVENS, Defendant and Appellant.
• Court: South Dakota Supreme Court

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2024 S.D. 3

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
TODD W. STEVENS, Defendant and Appellant.

No. 30145-a-SRJ

Supreme Court of South Dakota

January 17, 2024

ARGUED AUGUST 31, 2023

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J. STOLTENBURG Judge

DONALD M. MCCARTY STACIA JACKSON of Helsper, McCarty, & Rasmussen, P.C. Brookings, South Dakota Attorneys for defendant and appellant.

MARTY J. JACKLEY Attorney General

STEPHEN G. GEMAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

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JENSEN, CHIEF JUSTICE

[¶1.] After a police investigation, Todd Stevens was indicted and convicted of six drug-related counts. Ashley Burgers, Stevens' former roommate and fellow methamphetamine user, testified for the State in exchange for immunity. Stevens' trial counsel^[1] did not request-and the circuit court did not give-corroboration or cautionary accomplice jury instructions for Burgers' testimony involving the distribution charges. Stevens argues that it was plain error for the circuit court to fail to give these instructions. Additionally, he argues this Court should review his claim of ineffective assistance by his trial counsel, on direct appeal, for failing to propose accomplice testimony instructions. We affirm.

Factual and Procedural Background

[¶2.] Stevens resided in Brookings, South Dakota, within 1000 feet of Mickelson Middle School. In June 2021, after receiving a tip from a confidential informant, police began investigating drug activity at his residence. As part of the investigation, police conducted two traffic stops of individuals leaving Stevens' residence, during which they found methamphetamine on one driver and a methamphetamine pipe on the other driver. Police also tracked Stevens' vehicles and, on multiple occasions, placed him within blocks of the home of Ryan Gillis, a known Sioux Falls methamphetamine supplier. Police also conducted two trash pulls, finding broken methamphetamine pipes, baggies with marijuana residue, a letter from Burgers to Stevens saying she "grabbed that full you left under your mattress . . . [and was] going to go get rid of [half] of it for you[,]" a possible ledger of

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drug transactions, and mail showing that Burgers was living at Stevens' residence. At trial, the detective investigating Stevens explained the drug terminology in Burgers' letter.

[¶3.] On September 27, 2021, upon executing a search warrant at Stevens' residence, police found 2.16 grams of methamphetamine, a digital scale that field tested positive for methamphetamine, drug paraphernalia, and marijuana. When Stevens, who had not been home during the search, returned to town, police conducted a traffic stop based on the still-open search warrant and found a baggie containing 2.59 grams of methamphetamine on his person.

[¶4.] Stevens was indicted on October 8, 2021, on six counts: (1) distribution of a schedule II controlled substance in violation of SDCL 22-42-2 (methamphetamine), (2) committing the distribution offense described in count (1) in a drug-free zone in violation of SDCL 22-42-19(1), ^[2] (3) possession with intent to distribute a schedule II controlled substance in violation of SDCL 22-42-2 (methamphetamine), (4) maintaining a place where drugs are sold or kept in violation of SDCL 22-42-10, (5) unauthorized possession of a controlled substance in violation of SDCL 22-42-5 (methamphetamine), and (6) possession of marijuana in violation of SDCL 22-42-6. He pleaded not guilty to each count.

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[¶5.] Prior to trial, the State gave Burgers immunity from prosecution for her involvement in criminal activity during the summer of 2021 and for her August 2022 parole revocation in exchange for her cooperation. Burgers testified that she was not romantically involved with Stevens. Rather, they had an arrangement where she performed household chores at his residence and looked after him and his friends. She did not pay him to stay there, and she did not pay him for the drugs he gave her. She recounted how she, Stevens, and others frequently used methamphetamine Stevens supplied in the house. She testified that the group would typically consume an eight ball^[3] of methamphetamine per night.

[¶6.] According to Burgers, she was the only other person allowed in Stevens' bedroom, where he kept some of his methamphetamine. He kept methamphetamine in other locations as well. She testified that Stevens used a digital scale to weigh methamphetamine and named several individuals to whom he had sold methamphetamine. Burgers confirmed in her testimony that there were times when "fronting" methamphetamine was involved, meaning "you front the meth and maybe pay later[.]" On these occasions, Burgers "would write it down to help [Stevens] keep track" of outstanding drug debts.

[¶7.] Burgers also explained the letter she had written to Stevens that police discovered during a trash pull at his residence. She testified that she wrote the letter on August 31, 2021, because she was unable to fully wake him. She left the letter to inform him that she had "grabbed that full that you left under your

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mattress for [Roger Love] and I'm going to go get rid of half of it for you." She explained that a "full" referred to a full ounce of methamphetamine and that Stevens would commonly "front" methamphetamine to Love, who would sell it in Sioux Falls and pay him later. Burgers named Ryan Gillis as one of Stevens' suppliers. She testified that she accompanied Stevens on several trips to purchase methamphetamine from Gillis, often about two ounces at a time.

[¶8.] On cross-examination, Stevens' counsel highlighted Burgers' motivation to testify. In response to his questions, she confirmed that she told a detective she had relapsed and that he told her "up front that he would do whatever he could to make sure that [she] didn't get in any trouble for that[.]" She also agreed that "being incarcerated makes it difficult to care for [her] children." Stevens presented the agreement Burgers had signed prior to testifying, and Burgers explained her understanding of it: "if I testify here today that I can get, I think it's called immunity, and not get charged with the same charges." Stevens also challenged Burgers' testimony by asking about the relatively small amounts of methamphetamine she saw Stevens possess and suggested that she had introduced Stevens to Gillis.

[¶9.] A forensic chemist from the South Dakota Public Health Laboratory testified that she tested the substances police found in Stevens' home and on his person, confirming that both were methamphetamine. The chemist also weighed and provided the exact quantities of methamphetamine found in Stevens' home and on his person.

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[¶10.] The State also presented evidence that Stevens communicated with his son by text message while Stevens was incarcerated prior to trial. During one of their conversations, Stevens sent a message to his son containing the following: "[a]s much as I bougjt meth I also helped othet friends and we just paid each other back the cost. If that is considered being a distributor than iguess iand all the past friends Are deallers than but i woll say its bulls[***] to tag me or any other as a dealer when the resl ones haves pounds or more available for yhe people that are Not necessarily friends their actually customers in my mind i didnt operate that way nor did my friends." (Errors in original.)

[¶11.] When the State rested at the end of the first day of trial, Stevens unsuccessfully moved for a judgment of acquittal, arguing without elaboration that the State did not make a prima facie case. Stevens also indicated his plan to rest when the jury reported the next day. The circuit court worked with counsel to settle the final jury instructions. Stevens did not object to the court's instructions or propose additional instructions.

[¶12.] During closing argument, Stevens admitted he was a user of methamphetamine and marijuana and that the evidence supported his convictions on counts (4), (5), and (6) but urged the jury to find him not guilty on the remaining counts involving distribution. He argued that Burgers' testimony was not corroborated because police did not find an "owe sheet" during the execution of the search warrant, did not conduct a controlled buy, and did not directly observe distribution occurring. Stevens asserted further that the small amounts of drugs discovered on his person and in his residence were consistent with personal use, not

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distribution, and that the State's evidence supported a theory that Burgers, not Stevens, was distributing methamphetamine.

[¶13.] The jury returned a guilty verdict on all counts. Stevens was sentenced to serve one year for count (1); a five-year consecutive sentence for count (2); and a ten-year consecutive sentence for count (3). The circuit court imposed a county jail sentence on each of the possession charges. Stevens appeals and raises two issues, which we restate as follows:

1. Whether the circuit court plainly erred by failing to sua sponte give corroboration and cautionary jury instructions on accomplice testimony.

2. Whether Stevens received ineffective assistance of counsel because trial counsel did not request corroboration and cautionary jury instructions on accomplice testimony.

Analysis

1. Failure to instruct on accomplice testimony

[¶14.] The circuit court's final jury instructions contained no reference to Burgers as an accomplice and included no corroboration or cautionary instructions for evaluating Burgers' testimony. Stevens acknowledges the issue was not preserved as trial counsel failed to request accomplice instructions, but he asks this Court to review the circuit court's failure to sua sponte give accomplice instructions for plain error. "Where an issue has not been preserved...