State v. Whitfield, 27093.
| Decision Date | 01 April 2015 |
| Docket Number | No. 27093.,27093. |
| Citation | 862 N.W.2d 133 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. John Thomas WHITFIELD, Jr., Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Marty J. Jackley, Attorney General, Bethany L. Erickson, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.
Katheryn L. Dunn, Office of the Minnehaha County Public Defender, Sioux Falls, SD, Attorneys for defendant and appellant.
[¶ 1.] After intercepting a package with 37 grams of cocaine hidden in a doll, the State arrested and charged defendant with Count 1: possession of a controlled substance with intent to distribute, Count 2: possession of a controlled substance, Count 3: possession of marijuana, and Count 4: possession of drug paraphernalia. At defendant's jury trial, the circuit court admitted two text messages sent to defendant's phone, which suggested that the sender wanted to obtain cocaine from defendant. At the close of the evidentiary portion of the trial, defendant moved for a judgment of acquittal, and the court granted the motion with respect to Count 1. However, the dismissed Count 1 was listed in the final jury verdict form included with the instructions, and the jury found defendant guilty of that charge. The jury also convicted defendant of Count 2: possession of a controlled substance and Count 4: possession of drug paraphernalia. The jury acquitted defendant of Count 3: possession of marijuana. The court imposed a penitentiary sentence for Count 2, after finding grounds to depart from a presumptive sentence of probation under SDCL 22–6–11. Defendant appeals. We affirm the circuit court and remand with instructions to enter an amended judgment.
[¶ 2.] On August 3, 2013, after receiving a tip that a package containing illegal drugs would be delivered to Sioux Falls from Texas, Agent Michael Hockett with the Sioux Falls Area Drug Task Force intercepted the package and brought it to the law enforcement center. Agent Hockett obtained a warrant to search the package, which was addressed to a “James Miguel” at the Brimark Inn, Sioux Falls, South Dakota. The detectives opened the package and found a large pink-headed doll (known as Lalaloopsy), a birthday card, markers, and a black garbage bag. The head of the Lalaloopsy doll had a pouch closed by a zipper. In the pouch, the detectives uncovered 37 grams of cocaine, which was packaged with a California Scent car air freshener canister.
[¶ 3.] Agent Hockett and Detective Nick Cook set up a controlled delivery of the package to the front desk of the Brimark Inn. Louis Deak arrived at the Inn by taxi and attempted to pick up the package, after which law enforcement took him into custody. Agent Hockett and Detective Cook questioned Deak, who told them he was a worker at the carnival stationed at the fair grounds and that his supervisor, “Big John,” had purchased a taxi for him and sent him to pick up a package on his behalf. Deak told the officers they could find Big John at the fairgrounds in a blue NAPA trailer truck.
[¶ 4.] Detectives Flogstad, Dan Christiansen, Terrance Matia, and John Spaeth located Big John at the fairgrounds, who was later identified as John Whitfield. Whitfield gave them consent to search his living quarters, which were in the NAPA truck. In the area of the truck where Whitfield resided the detectives found a cocaine pipe inside a black toiletry bag, a smokeless tobacco container with a small amount of marijuana inside, a clear film canister containing cocaine residue, a Lalaloopsy doll, and a California Scent air freshener canister also containing cocaine residue. Whitfield had also given the detectives consent to search his cell phone. His call history showed an outgoing call to the taxi company that Deak used to pick up the package. The detectives also retrieved two text messages on the cell phone from an individual identified in Whitfield's contact list as “JKenny.” The first message was sent to Whitfield's phone on July 29, 2013, stating, “U still holding?” The second message was sent on July 31, 2013, and stated, “Hey, u have any choi?” Whitfield admitted to the detectives that he sent Deak to pick up the package addressed to James Miguel. He denied any knowledge of the drugs in the package or the drugs found in his area of the truck.
[¶ 5.] The State charged Whitfield with Count 1: possession of a controlled substance with intent to distribute in violation of SDCL 22–42–2, Count 2: possession of a controlled substance in violation of SDCL 22–42–5, Count 3: possession of marijuana in violation of SDCL 22–42–6, and Count 4: possession of drug paraphernalia in violation of SDCL 22–42A–3. The State also filed a part II information alleging Whitfield was a habitual offender under SDCL 22–7–7.
[¶ 6.] A jury trial was held January 13–14, 2014. During the trial, the State sought to admit the two text messages from JKenny through the testimony of Detective Flogstad. The State offered the messages to show Whitfield's knowledge of cocaine and his course of conduct based on the fact that the messages were sent a few days prior to the delivery of the package and not to prove the truth of the matter asserted in the text messages. The court inquired of the State, “To what extent do they establish knowledge by this defendant, I think you said, of cocaine?” The State explained that Detective Flogstad would testify that based on his training and experience “choi” is known to be a code word for cocaine and the message “u still holding?” refers to cocaine and dealing cocaine. Whitfield objected to the admission of the statements asserting that the messages were inadmissible hearsay and irrelevant. Whitfield contended that the statements were hearsay because they were offered to prove that somebody was asking Whitfield for cocaine, which went to the truth of the matter asserted. Whitfield further argued that the statements were not relevant because they could not be attributed to him specifically and were offered without the context in which they were sent. The court ruled that the messages were relevant and not hearsay and, therefore, admissible. The court found the messages were “being offered for knowledge as to possession of the phone and that there's at least drug-related nature of communication on that phone” and “not necessarily that there was or was not cocaine and not the truth of that matter[.]”
[¶ 7.] At the close of the State's case, Whitfield moved for a judgment of acquittal on all charges. The court denied Whitfield's motion as it related to Counts 2 through 4, but took Whitfield's motion under advisement as it related to Count 1: possession of a controlled substance with intent to distribute. After both sides had rested, the court reconsidered Whitfield's motion for a judgment of acquittal on Count 1. Aside from the large amount of cocaine found in the doll, the court found that there was no evidence, circumstantial or otherwise, to support the inference that Whitfield possessed the cocaine with the intent to distribute it. The court specifically remarked that it was not considering the text messages as evidence that Whitfield intended to distribute the cocaine, because the messages were not admitted to prove the truth of the matter asserted—that JKenny wanted cocaine from Whitfield. Because the jury would have to speculate regarding Whitfield's intent, the court granted his motion for a judgment of acquittal on Count 1. The court modified the jury instructions accordingly.
[¶ 8.] The jury, however, inadvertently received the original verdict form that contained Count 1 rather than a revised form without Count 1. The jury returned a verdict finding Whitfield guilty of Count 1, Count 2, and Count 4 and not guilty of Count 3: possession of marijuana. The court struck the jury's finding of guilt on Count 1. After the jury was dismissed, the court informed the parties that the jury did not have instructions relevant to Count 1 and asked the parties whether either would like to make a record on the incorrect verdict form. Both parties declined. The court later dismissed the part II information and sentenced Whitfield on Count 2: possession of a controlled substance to five years in the penitentiary with two years suspended and to 30 days for Count 4: possession of drug paraphernalia.
[¶ 9.] Pursuant to SDCL 22–6–11, Whitfield is entitled to a probationary sentence unless the court finds that the presence of aggravating factors justify a departure. The circuit court denied Whitfield presumptive probation “based upon looking at your prior criminal convictions, the amount of substance found to be in your possession, [and] your nonconducive nature to probation.” The court found particularly relevant the fact that this was Whitfield's fourth felony conviction, with prior convictions for the manufacture, delivery, or possession of a controlled substance, criminal trespass, and theft of property. The court further considered that Whitfield had a number of parole violations in Texas and that he would be difficult to supervise because he had a transient lifestyle, was employed as a carnival worker, and moved from state to state.
[¶ 10.] Whitfield appeals asserting (1) the court abused its discretion when it admitted the two text messages from JKenny, (2) the improper verdict form tainted the jury's deliberations and verdict and prejudiced Whitfield, and (3) the court erred by finding aggravating circumstances justified a departure from the probationary sentence mandated by SDCL 22–6–11.
[¶ 11.] We review a court's evidentiary rulings for an abuse of discretion, and if error is found, we will not overturn the court's evidentiary ruling unless the error is prejudicial. State v. Harris, 2010 S.D. 75, ¶ 8, 789 N.W.2d 303, 307 (citing State v. Boston, 2003 S.D. 71, ¶ 14, 665 N.W.2d 100, 105 ). “The construction of [a] statute and its application to [the] facts...
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