State v. Westerfield

• Decision Date: 27 March 1997
• Docket Number: No. 19707,19707
• Citation: 567 N.W.2d 863,1997 SD 100
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jevon WESTERFIELD, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 863

567 N.W.2d 863

1997 SD 100

STATE of South Dakota, Plaintiff and Appellee, v. Jevon WESTERFIELD, Defendant and Appellant.

No. 19707.

Supreme Court of South Dakota.

Considered on Briefs March 27, 1997.

Decided Aug. 6, 1997.

Mark Barnett Attorney General, Timothy Bartlett, Assistant Attorney General, Pierre, for plaintiff and appellee.

Gordon D. Swanson of Hansen & Hubbard, Sturgis, for defendant and appellant.

KONENKAMP, Justice.

¶1 Jevon Westerfield engaged juveniles and others in a marijuana distribution scheme in the Black Hills area. In his appeal from convictions for distribution, conspiracy, and possession, we review several issues, including standing to challenge the search of a friend's apartment, purported vouching for witnesses by the prosecutor, and the court's order to disclose defense investigator interviews with State witnesses. We conclude Westerfield had no standing, the State never vouched for its witnesses, and although the court violated the statute in ordering discovery of defense interviews, the State's other evidence was so overwhelming we deem the error not prejudicial and affirm.

Facts

¶2 On November 14, 1995, Officer Kevin Klunder of the Spearfish Police Department responded to a complaint of a marijuana odor emanating from an apartment on Ames Street. Upon knocking, Klunder was greeted at the door by Kara Taylor, the tenant. Klunder smelled a strong odor of marijuana coming from inside. He then saw Westerfield walk toward a bedroom in the back of the apartment and, fearing for his own safety, Klunder followed. Westerfield quickly reemerged from the room. Klunder patted him down for weapons and found nothing. Glancing in the room Westerfield had just left, Klunder saw the window curtain, which had been closed before Westerfield had entered, was now open. He entered the room, looked out the window and saw a black shoe box on the ground. He concluded the box probably contained marijuana.

¶3 As Klunder left the bedroom, Westerfield ran from the apartment. He commanded him to stop and "leave the dope alone," but Westerfield continued to flee. Klunder pursued him unsuccessfully, then returned to seize the shoe box. He opened the lid and found another box inside, as well as a green, leafy substance on the lid of the second box. Deciding not to immediately open the interior lid, he brought the box into the apartment and laid it on the living room floor. He then asked Taylor for permission to search the apartment. She refused.

¶4 Klunder allowed two other people in the living room to leave. Another police officer arrived, and the two made a protective sweep of the apartment. During their search, they found C.S., a minor, hiding in a bedroom closet. Taylor and C.S. were taken to the police station, at which time Taylor verified the marijuana belonged to Westerfield. Search warrants were obtained for Taylor's apartment and car and Westerfield's apartment. With a warrant, the shoe box was searched, revealing thirty-three individually packaged quarter-ounce baggies of marijuana and also some loose marijuana in the box, totaling 6.91 ounces. Westerfield's word processor was also seized in Taylor's apartment; it contained several incriminating records, including distribution agreements, information sheets, billing and possession logs. ¹

¶5 Exposed through these events was a marijuana distribution scheme, involving juveniles and others, in the Black Hills area. Many of the witnesses who later testified for the State had been participants with Westerfield, but were granted use immunity or plea agreements in exchange for their cooperation. The State's evidence revealed that in October 1995, Westerfield collected between $900 and $1000 from A.R., S.S., Donovan Derek, and David Johnson. Westerfield then traveled to Denver with J.I., another juvenile participant, where he used the money to purchase a pound of marijuana. On the way home, J.I. and Westerfield smoked a portion of it. When they reached Spearfish, they went to Taylor's apartment, where Westerfield gave A.R. and S.S. marijuana to smoke. The next day, he also provided S.S. and J.I. with ten bags of marijuana for them to sell. Eventually, the pound of marijuana obtained in October was expended. In November, Westerfield collected approximately $850 from Johnson and Taylor for another Denver trip. While there, he bought a pound, divided and packaged individual portions, and put them in the shoe box later recovered during the incident in Taylor's apartment.

¶6 Westerfield was convicted of five counts of Distribution of Marijuana to a Minor (SDCL 22-42-7), one count of Conspiracy to Distribute More than One Pound of Marijuana (SDCL 22-42-7 and 22-3-8), and one count of Possession of Marijuana Less than One-Half Pound (SDCL 22-42-6). He appeals on multiple assignments of error, three of which merit discussion: (1) Did the trial court abuse its discretion when it denied Westerfield's motion to suppress evidence? (2) Was there error in allowing witnesses to state their plea bargains involved the promise of truthful testimony? (3) Did the trial court abuse its discretion in ordering full reciprocal discovery? ²

Analysis and Decision

¶7 1. Standing--Warrantless Entry to Home

¶8 Westerfield moved to suppress the evidence seized, asserting violations of his state and federal constitutional rights. The trial court denied the motion, a ruling we examine under an abuse of discretion standard. State v. Anderson, 1996 SD 59, p 8, 548 N.W.2d 40, 42 (citing State v. Ramirez, 535 N.W.2d 847, 848 (S.D.1995); State v. Smith, 477 N.W.2d 27, 31 (S.D.1991); State v. Zachodni, 466 N.W.2d 624, 630 (S.D.1991)). "The ultimate decision of the trial court on suppression will be affirmed unless the defendant can demonstrate that such discretion has been exercised to an end or purpose not justified by, and clearly against, reason and evidence." State v. Shearer, 1996 SD 52, p 12, 548 N.W.2d 792, 795 (quoting State v. Fountain, 534 N.W.2d 859, 863 (S.D.1995)). A trial court's factual findings are reviewed under the clearly erroneous standard. State v. Stetter, 513 N.W.2d 87, 91 (S.D.1994); State v. Corder, 460 N.W.2d 733, 736 (S.D.1990).

¶9 Westerfield argues Klunder's warrantless entry into the bedroom and his observation of the shoe box Westerfield threw out the window constitute an unconstitutional search under the Fourth Amendment to the United States Constitution and Article VI, Section 11 of the South Dakota Constitution. Warrantless searches may be legitimated only by probable cause and exigent circumstances. Segura v. United States, 468 U.S. 796, 812, 104 S.Ct. 3380, 3389, 82 L.Ed.2d 599, 613 (1984); State v. Johnson, 509 N.W.2d 681, 685 (S.D.1993) (citation omitted). Yet, the threshold question when considering a search and seizure issue is whether the person asserting a constitutional infringement has a reasonable expectation of privacy in the place searched. State v. Thomale, 317 N.W.2d 147, 149 (S.D.1982). As constitutional rights are personal, they can only be maintained by defendants having standing. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir.1995). If a legitimate expectation exists, then a person challenging a search has standing. Rawlings, 448 U.S. at 104, 100 S.Ct. at 2561, 65 L.Ed.2d at 641. To determine whether an expectation is reasonable or legitimate, the defendant must first possess and assert a subjective expectation of privacy. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210, 215 (1986)(citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Then, the question becomes whether society accepts the expectation as reasonable. Id.

¶10 What expectation of privacy did Westerfield have in Taylor's apartment? While there was testimony he was dating Taylor, the evidence also revealed he lived in another part of town in a different apartment with another girlfriend. He made no evidentiary showing at the suppression hearing that he spent substantial time at Taylor's, for instance, nor did he assert that any of his activities at Taylor's created a reasonable expectation of privacy. As the United States Supreme Court noted in Rakas v. Illinois, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by the search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, 395 (1978). Under our state and federal constitutions, Westerfield had no standing to challenge the legality of the search, as he demonstrated no legitimate expectation of privacy. We affirm on this issue.

¶11 2. Improper Vouching

¶12 Westerfield argues the State improperly vouched for those witnesses who pursuant to their plea agreements promised to testify truthfully. He highlights instances where the prosecutor discussed the plea ramifications with the witnesses. Yet the State merely questioned these persons regarding their understanding of the plea agreement and the accompanying obligation to speak the truth. To decide whether these statements constituted improper vouching, we turn to the criterion in State v. Goodroad:

Prejudicial error, under Roberts, does not result from the use of a witness' plea agreement promise to be truthful:

The mere statement in a plea agreement that a witness promises to speak "truthfully" does not by itself constitute improper vouching. [People v.] Buschard, 109 Mich.App. at 316, 311 N.W.2d at 764. This "is the same promise he or she makes when called as a witness at trial." United States v. Leslie, 759 F.2d 366, 378 (5th Cir.1985). Similarly, a statement in a plea agreement that perjury charges will be brought if the defendant makes any false statement under oath is law already known by most jurors even without instruction by the court.

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