State v. Zephier

Decision Date23 September 2020
Docket Number#28771
Citation949 N.W.2d 560
Parties STATE of South Dakota, Plaintiff and Appellee, v. Trevor ZEPHIER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

JASON R. RAVNSBORG, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

BRADLEY D. KERNER, Armour, South Dakota, KEITH GOEHRING, Parkston, South Dakota, Attorneys for defendant and appellant.

SALTER, Justice

[¶1.] Trevor Zephier appeals his conviction for first-degree burglary and grand theft, arguing the circuit court erred when it denied his motion to suppress evidence that was returned to the owner before trial. Zephier also alleges the court abused its discretion when it denied his motion for expert fingerprint testing. We affirm.


[¶2.] At approximately 7:00 a.m. on December 9, 2016, Yankton Sioux Tribal Police received a call of shots fired at Shawn Patterson's residence in rural Lake Andes. Lieutenant Willard Bruguier, Jr., responded to the call and learned from Patterson that two shots were fired from a dark-colored vehicle in his driveway. The vehicle drove off after the shooting.

[¶3.] Lieutenant Bruguier patrolled the area and saw a maroon two-door car matching Patterson's description. He approached the vehicle, and Zephier got out of the car through the driver's door to speak with Bruguier who advised that he was investigating a report of shots fired. Zephier responded by stating there were no guns in his car. Lieutenant Bruguier did notice that there were other occupants in Zephier's vehicle—a female in the passenger seat and a man later identified as Daniel Cranmer was in the back seat. Bruguier noticed that Cranmer appeared nervous and "fidgety."

[¶4.] Zephier was subject to Yankton Sioux Tribal Court supervision conditions that authorized random warrantless searches and seizures, and Lieutenant Bruguier elected to detain him. As Bruguier was administering a preliminary breathalyzer test (PBT) to Zephier, Cranmer moved to the driver's seat and drove off. Another tribal officer arrived in time to lend pursuit, and a high-speed chase ensued. Cranmer soon lost control of Zephier's vehicle, which left the road and rolled before coming to rest on its roof in a ditch.

[¶5.] Cranmer fled the scene and was later apprehended at Patterson's residence. Tribal officers looked inside the vehicle and saw several guns in the back seat. Since the accident occurred on land subject to state—not tribal—jurisdiction, they contacted the Charles Mix County Sheriff's Office.1 Chief Deputy Derik Rolston and another deputy arrived at the scene. They recovered nine guns from the back seat of Zephier's car and an additional seven guns from the trunk. Chief Deputy Rolston photographed the guns and transported them to the sheriff's office, where each gun was inspected and inventoried. Additional photographs of each gun's model and serial number were taken at the sheriff's office.

[¶6.] Suspecting the guns could belong to Joe Soulek based on an unrelated 2010 reported gun theft, Chief Deputy Rolston contacted Soulek, who came to the sheriff's office. Soulek identified the guns as his, but told the officers they were not the guns he previously reported stolen. In fact, Soulek was not aware the guns recovered from Zephier's car had been stolen since he had recently been away from home. The sheriff's office returned the guns to Soulek that day except for the gun suspected to have been fired at the Patterson home, which was turned over to tribal police. At trial, Chief Deputy Rolston testified that he called the state's attorney, who advised him that he could return the guns to Soulek.2

[¶7.] Not long after he was apprehended, Cranmer confessed to tribal officers that he and Zephier had stolen the guns from Soulek's house. Cranmer explained that he had previously worked for Soulek and knew he kept several guns in his house. According to Cranmer, he and Zephier drove to Soulek's house in Zephier's car, and Zephier entered the residence. While Cranmer acted as the lookout, he claimed Zephier removed several armfuls of guns from the house and loaded them into his car. Cranmer advised that their plan was to trade the guns for drugs and that Zephier had already traded two stolen pistols3 for drugs and cash prior to being apprehended.

[¶8.] Zephier also gave a statement to tribal officers. In it, he explained that he had no knowledge that there were guns in his car when Lieutenant Bruguier detained him.

[¶9.] Based on Cranmer's statement, Chief Deputy Rolston obtained a warrant for Zephier's arrest, and the State charged him with first-degree burglary and grand theft. See SDCL 22-32-1(3), SDCL 22-30A-1, and SDCL 22-30A-17 (classifying theft offenses). Zephier made his initial appearance and posted bond.

[¶10.] Zephier moved for suppression of the guns, asserting that the State would be unable to establish a proper chain of custody based on its decision to immediately return the guns to Soulek.4 See SDCL 23A-37-15 (requiring "law enforcement personnel in possession of ... [seized] property" to notify the defendant before returning it to the owner and retain it if ordered by the court). In the alternative, Zephier sought forensic testing of the guns to confirm what he claimed would be the absence of his fingerprints.

[¶11.] While acknowledging concern about law enforcement's noncompliance with statutory standards for preserving evidence, the circuit court denied Zephier's motions. Applying the materiality test from our decision in State v. Lyerla , 424 N.W.2d 908 (S.D. 1988), the court reasoned that "an objective officer would not have known at the time of returning the guns that they contained some exculpatory information." The court recognized that the lack of fingerprint evidence had some potential exculpatory value, but it would not necessarily exonerate Zephier if, for instance, he had worn gloves when he handled the guns.

[¶12.] The circuit court made the same determinations in its subsequent findings of fact and conclusions of law and further found that, at a minimum, Zephier constructively possessed the guns when they were in his vehicle. The court reasoned that the circumstances "ma[de] it unforeseeable that the Defendant would later claim to have never seen or touched any of the firearms." In the court's view, Zephier had not established that "fingerprints or other biological material" or "the lack of his fingerprints on the guns amounts to [favorable] evidence ...." Lastly, the court concluded that there was no evidence the State acted with bad faith when it returned the guns to Soulek.

[¶13.] As it related to Zephier's request to test the previously-returned firearms, the court denied relief, essentially concluding that it was "too late" for testing because the guns had been handled by deputies and then released to Soulek.5 However, the court told the parties that Zephier's defense counsel would be given "great leeway" at trial to discuss the failure to preserve the evidence and its potentially exculpatory value.

[¶14.] Zephier's case was tried to a jury on December 4 and 5, 2017. During trial, Zephier renewed his motion to suppress the guns upon learning, apparently for the first time, that Chief Deputy Rolston had received permission from the state's attorney to release the guns to Soulek. The circuit court again denied Zephier's request, finding that the state's attorney's involvement in the decision to return the guns did not change its previous analysis.

[¶15.] The State called Cranmer as a witness.6 Consistent with his previous statement, Cranmer told the jury that he and Zephier had formulated a plan months before the burglary to steal guns from Soulek and trade them for drugs. Cranmer claimed that he never entered Soulek's home on the morning of the burglary, but instead stayed in the car while Zephier made several trips into Soulek's home to remove the guns, which Cranmer then helped load into the car. Soulek also testified, explaining that the stolen guns had an estimated value of $15,950.

[¶16.] Zephier testified in his defense and told jurors that he had loaned his car to Cranmer in the early morning hours of December 9 in exchange for gas money, but Cranmer kept the car much longer than expected, picking Zephier up between 7:30 and 8:00 a.m. Zephier told jurors that he had no knowledge the stolen guns were in his vehicle when he spoke with Lieutenant Bruguier later that morning and only became aware of the guns while in tribal custody following his arrest. Zephier also explained that the back seats of his car fold down to allow access to the trunk, suggesting all the guns could have been kept in the trunk prior to the rollover accident.

[¶17.] The circuit court gave the jury a specific instruction regarding law enforcement's failure to comply with statutory standards regarding evidence preservation. The instruction stated that it was for the jury's "sole and exclusive determination whether returning the property to Joe Soulek ... bears upon the innocence or guilt of the defendant." Zephier did not object to this instruction. Regarding law enforcement's failure to notify Zephier before returning the guns, the prosecutor told the jury, "[W]hat you need to decide is okay, they didn't follow the procedure. But does that make him innocent? No, he's still guilty. He did the crime." For his part, Zephier's defense counsel argued that there was "a lot of reasonable doubt" whether Zephier committed this crime.

[¶18.] The jury convicted Zephier of first-degree burglary and grand theft, and the circuit court sentenced him to 25 years in the penitentiary with 15 years suspended for the burglary conviction and 10 years in the penitentiary with 5 years suspended for the grand theft conviction.7 The court ordered Zephier's sentences to run concurrent with credit for time served.

[¶19.] Zephier raises several issues on appeal, which we consolidate and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT