State v. Byrum

399 N.W.2d 334, 1987 S.D. LEXIS 213
CourtSouth Dakota Supreme Court
DecidedJanuary 14, 1987
Docket15189
StatusPublished
Cited by27 cases

This text of 399 N.W.2d 334 (State v. Byrum) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Byrum, 399 N.W.2d 334, 1987 S.D. LEXIS 213 (S.D. 1987).

Opinions

MORGAN, Justice.

Defendant, Daniel T. Byrum (Byrum), appeals from his conviction for distribution of LSD in violation of SDCL 22-42-2. Byrum was convicted of two counts of distribution of LSD after a two-day jury trial. We affirm.

On or about November 11, 1984, Kevin Langdon (Langdon) was hitchhiking in Sioux Falls, South Dakota, when he was picked up by Byrum and William Smith (Smith). Smith is Byrum’s brother-in-law. The conversation between the three men eventually turned to marijuana and other drugs. According to Langdon and Smith, the conversation then turned to the question of distribution of various drugs and Smith and Byrum solicited Langdon to sell drugs for them. Langdon agreed and ob[336]*336tained a telephone number where he could reach either Byrum or Smith. After this November 11 meeting, but before November 16, Byrum and Smith traveled to Cincinnati, Ohio, and returned with one thousand tablets of LSD. Byrum claims no knowledge of the LSD. He contends that he went to Cincinnati to participate in an annual poker game and that Smith decided to ride along. Upon arrival in Cincinnati, Byrum discovered that the poker game had been cancelled. Smith and Byrum returned to Sioux Falls shortly thereafter.

On November 16,1984, Byrum and Smith picked up Langdon at a prearranged location. Smith provided Langdon with fifty LSD tablets to sell at a party Langdon was attending later that evening. Smith and Byrum joined Langdon at the party sometime later, and again Smith provided Lang-don with fifty tablets to sell. At the same time Langdon turned over to Smith and Byrum the proceeds from the sale of the initial fifty tablets.

On November 19, 1984, Langdon was contacted by an undercover police officer. The officer purchased thirteen tablets which remained in Langdon’s possession after the party on November 16. At the time of the sale, the undercover police officer inquired whether Langdon could sell larger quantities of LSD. Langdon responded in the affirmative. Later on the evening of November 19, Langdon again met with Byrum and Smith and was provided with another twenty-five tablets of LSD.

The distributions to Langdon on November 16 and 19 formed the basis for the charges against Byrum. Additional facts, which include a subsequent drug sale, provide no basis for the charges but do assist in completing the factual scenario. On November 20,1984, the undercover police officer again contacted Langdon to inquire about a further purchase. The officer arrived at Langdon’s apartment and requested to buy $400 worth of LSD tablets. Langdon responded by calling his source. Shortly thereafter Smith arrived at Lang-don’s apartment and produced one hundred fifteen LSD tablets for sale to the undercover officer. At this point, Smith and Langdon were both arrested and charged with distribution of LSD.

Byrum initially contends that the trial court erred in denying his proposed accomplice instruction. Byrum asked for and received an accomplice instruction relating to the testimony of Smith. Byrum also asked for but did not receive an accomplice instruction relating to the testimony of Langdon. Byrum is correct when he contends that a conviction cannot be had solely upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant to the offense charged. SDCL 23A-22-8. The real issue, then, is whether Langdon is an accomplice of Byrum.

We dealt with a substantially similar accomplice issue in State v. Fox, 313 N.W.2d 38 (S.D.1981). See also State v. Lingwall, 398 N.W.2d 745 (S.D.1986). In Fox, we stated that “[i]t has been generally held that a purchaser of illegal drugs is not an accomplice to the crime of selling drugs.” Id. at 40. In Fox, we acknowledged that the witness, Becker, was not only a purchaser of drugs, but also a seller. We stated: “Becker’s status still does not constitute that of an accomplice....” Id. To that end, we quoted Gray v. State, 585 P.2d 357, 359 (Okla.Cr.1978):

A witness is not an accomplice to a defendant simply because his distinct acts happen to constitute a like offense. Rather, it is necessary that a charge against that witness could have arisen from the same occurrence as the crime for which the defendant was tried.

That the state’s attorney could have chosen to prosecute both Byrum and Langdon on some charge of conspiracy to sell to the undercover officer, or some other third person, is immaterial to this discussion. That is a prosecutorial election which we have no control over, nor should we, under the doctrine of separation of powers. Nor do we see any reason to retreat from our previous decisions.

[337]*337Byrum’s next contention is that the trial court erred in admitting evidence of other bad acts by Byrum. Specifically, By-rum alleges the trial court erred in admitting testimony by Langdon that he was threatened and assaulted by Byrum in an effort to intimidate Langdon into not testifying. Byrum claims this testimony was irrelevant and immaterial and that its probative value did not outweigh its prejudicial impact. We believe the trial court correctly admitted this evidence since it was directly related to Byrum’s intent to distribute the LSD or at very least showed his knowledge about the distribution. SDCL 19-12-5.

As for the argument that the probative value is outweighed by the prejudicial impact, that determination is within the sound discretion of the trial court. We find no abuse of discretion. We believe that th evidence of subsequent threats and assaults in an attempt to silence this witness was highly probative and was not substantially outweighed by the danger of unfair prejudice. See 19-12-3. We believe this same analysis applies to the testimony elicited from Claire Henning (Henning) relating to threats made by Byrum toward Hen-ning.

Byrum also contends that the trial court erred by admitting bad acts testimony relating to a prior drug sale to Henning. SDCL 19-14-10 (Fed.R.Evid. 608(b)) states in its entirety:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in §§ 19-14-12 to 19-14-16, inclusive, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness
(1) concerning his character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Simply put, specific instances of conduct, under certain circumstances, may be inquired into on cross-examination

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State v. Byrum
399 N.W.2d 334 (South Dakota Supreme Court, 1987)

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399 N.W.2d 334, 1987 S.D. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-byrum-sd-1987.