State v. Wilson

• Decision Date: 13 February 2008
• Docket Number: No. 24578.,24578.
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Chad John WILSON and John James Midmore, Defendants and Appellees.
• Court: South Dakota Supreme Court

745 N.W.2d 666

2008 SD 13

STATE of South Dakota, Plaintiff and Appellant, v. Chad John WILSON and John James Midmore, Defendants and Appellees.

No. 24578.

Supreme Court of South Dakota.

Argued January 8, 2008.

Decided February 13, 2008.

Appeal from the Circuit Court, Seventh Judicial Circuit, Custer County, John J. Delaney, J.

Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Tracy L. Kelley, Custer County State's Attorney, Custer, South Dakota, Michael R. Moore, Jeffrey M. Banks, Special Custer County Deputy State's Attorneys, Huron, South Dakota, Attorneys for appellant.

Robert Van Norman of Nooney Solay & Van Norman, Rapid City, South Dakota, Attorneys for appellees.

ZINTER, Justice

[¶ 1.] This is an intermediate appeal from circuit court discovery proceedings in a crithinal case. The circuit court was presented with the procedural question of how to protect work product and theories of the defense in contested proceedings involving defense requests for scientific testing of physical evidence. In some of the proceedings, the circuit court considered ex parte motions, briefs and affidavits. On occasion, the circuit court also conducted ex parte hearings, including one in which the court received expert testimony. Because we conclude that the circuit court, in attempting to balance the rights of all parties, nevertheless failed to follow statutory procedural requirements, we reverse and remand.

I.

[¶ 2.] On August 8, 2006, five people were shot at Legion Lake Lodge in Custer State Park during the Sturgis Motorcycle Rally. The victims were allegedly members of the Outlaw Motorcycle Club. Numerous witnesses identified the perpetrator as a passenger in a white Ford 350 pickup truck that was parked in the Lodge's parking lot. The pickup was found abandoned hours later on a logging road not far from the Lodge. Later that evening, John James Midmore and Chad John Wilson (Defendants) were arrested for the shootings. Authorities searched the pickup and the scene of the shooting and located, among other things, a .40 caliber gun magazine, three .40 caliber semiautomatic pistols, and ammunition. During the subsequent investigation, authorities determined that Wilson leased the pickup, and that Midmore and Wilson were associated with the Hell's Angels Motorcycle Club.

[¶ 3.] Beginning in November of 2006, the prosecution and defense began having difficulty arranging the scientific testing of physical evidence, in particular, the magazine and the pickup. In the course of those disputes, the circuit court and the defense began conducting ex parte communications through sealed motions (with sealed exhibits and affidavits of counsel), sealed briefs, and ex parte hearings, one of which involved court consideration of the Defendants' experts' testimony. According to the State, since September of 2006, the court conducted seven hearings, and the court engaged in ex parte communications in four of them. The issues discussed included joint representation of the Defendants, prosecution/defense disputes over scientific testing of the physical evidence, and venue of a potential trial. Although the issue in this appeal is limited to a sealed motion, brief and affidavits relating to scientific testing of the pickup, a chronological history of a number of the ex parte motions, affidavits, and hearings is required to provide context.

[¶ 4.] The first ex parte communication, in November of 2006, occurred in a hearing on the issue of joint representation of the Defendants. In an open hearing the circuit court stated, "I am going to have to address issues with counsel, which if disclosed to the State or anybody else, would violate their constitutional right to silence and their constitutional rights. I don't know any other way to do it unless [I] sneak back to my chambers and do it.... I understand people may have uproars about it, but I have no other choice at this time." The State objected¹ and attempted to relate evidence that it thought would create irreconcilable conflicts of interest, yet the circuit court resolved the matter in an ex parte hearing without participation by the State. In hindsight, a review of that transcript reflects that virtually everything said by the court, counsel, and the Defendants could have been disclosed in open court² [¶ 5.] Shortly thereafter, the defense, in the open portion of that hearing, requested to be present when the State conducted tests on the magazine of one of the .40 caliber semiautomatic pistols that was found, arguing that if any fingerprint testing was performed on the magazine, it would destroy evidence they desired to obtain. When the circuit court requested the defense to explain why the State's testing would impair their ability to collect evidence from the magazine, the defense responded, "I can tell you in camera," and, "I would be happy to file a document under seal setting forth what we are concerned about." The circuit court responded, "I would appreciate if you would do that."

[¶ 6] The defense responded in February 2007, by filing an ex parte motion partly under seal for an order to allow its experts to be present during testing of the magazine. In a section that was not sealed, Defendants alleged that the State's Attorney made several agreements that would have allowed the presence of a defense expert, but the State subsequently breached those representations and agreements. The defense also argued that the State's testing altered some of the evidence such that defense testing could be compromised. Therefore, the defense requested that it be allowed to be present before any future testing.

[¶ 7.] On February 23, 2007, the circuit court, Defendants, and defense counsel participated in an ex parte hearing on this motion. The defense reiterated its request to be present at any future testing, and further requested that it be allowed to do independent testing before the State continued its tests. The defense also requested the court to order the State to answer a list of questions regarding the State's evidence testing. Finally, those present engaged in a substantive discussion of change of venue. Notwithstanding the Defendants' argument on appeal, our review of the record reflects that the substantive ex parte discussion on venue was not "limited" and "unremarkable."³

[¶ 8.] On March 14, 2007, the circuit court granted Defendants' February ex parte motion for an order allowing its experts to be present during testing on the magazine. The court's order required the State to refrain from further testing on the magazine and allowed Defendants' experts to conduct independent testing. The order also required the State to provide an area at the State Crime Lab for the Defendants' experts. Although the State's experts were not allowed to dispute whether or not the defense's testing would alter the evidence for the State's testing purposes, the circuit court assured the State that, based on the judge's personal experience with handguns, the defense's testing of the magazine would not affect any testing the State wished to perform.

[¶ 9.] The State filed a motion to reconsider, a motion for stay of order, and a motion for a Daubert hearing. These motions were denied without hearing. Thereafter, on March 22, 2007, the State filed a petition for an intermediate appeal with this Court challenging the ex parte motion and hearing. This Court denied the State's petition, expressing no opinion on the merits.

[¶ 10.] On May 14, 2007, the defense filed another ex parte motion (not under seal) to bring a gun magazine into the courthouse "for purposes of demonstration of disassembling a .40 caliber gun magazine[.]" The circuit court granted this motion, and on May 15, 2007, proceeded with another ex parte hearing. At this hearing, the court, defense witnesses, and defense counsel discussed in great detail how to disassemble the magazine and whether or not it would destroy evidence. An expert introduced the "demonstrative magazine" and showed the court how the defense's experts proposed to disassemble the actual magazine. After this demonstration, the court allowed the defense to proceed with testing before the State, stating,

At this stage of the game, the Court has observed the disassembly of a magazine that is represented to be of the same kind and nature as that in question.... The court sees no reasonably conceivable way in which the magazine can be damaged or altered without that alteration being apparent, particularly if the disassembly and testing and reconstruction is done under the eye of a court-appointed monitor of some sort yet to be determined. The magazine itself is an exercise in simplicity and with proper photographing by the [S]tate before the test is done, the ability of the defense to run the test and to alter the magazine, should such a thing happen either by intent or accident, would be virtually — as near as the court can tell impossible to hide. So I don't see the difficulty with that.

[¶ 11.] On June 21, 2007, the defense filed another ex parte motion (this time under seal) to test the pickup outside the presence of the State. In this motion, the defense disclosed the testing it sought to perform on the pickup. In support of the motion, the defense filed sealed ex parte affidavits from Defendants' attorneys describing their view of certain communications and disputes between the defense and the State regarding access to the pickup for testing. They alleged that the State had failed to produce evidence, that the State was making demands upon the defense as a prerequisite to defense testing, and that the State had retracted prior agreements to make the pickup available. The defense finally disclosed a theory of its case that would support testing. On this occasion, the circuit court did not conduct an ex parte hearing, nor did it conduct any hearing at all. In fact, the State was not notified of the...