State v. Johnson

509 N.W.2d 681

• Court: South Dakota Supreme Court
• Decided: February 18, 1994
• Docket: 18059, 18060
• Status: Published

Opinions

SABERS, Justice.

As a result of a controlled delivery of drugs by DCI agents, Defendants were convicted of possession of drugs and appeal. We affirm.

Facts

On November 8, 1991, a United States Postal Service Express Mail package addressed to Christine Johnson (Christine), Rt 1 Box 12A, Beresford, South Dakota from Chris Davis (Davis) was inadvertently delivered to Citibank in Sioux Falls by post office personnel. The following day, Citibank personnel opened the package and discovered a “white powdery substance” inside. Sioux Falls police were notified. The substance, which weighed slightly more than two grams, field-tested positive for methamphetamine.

State Division of Criminal Investigation (DCI) agents decided to make a controlled delivery of the package to Christine. Agent Barry Mennenga (Mennenga) made up two fake bindles, each approximately one gram in weight (Exhibit 8). One of the bindles contained only inositol, a “cutting agent.” The other bindle contained mostly inositol with a small amount of the methamphetamine.

After an unsuccessful attempt to deliver the package that day, DCI Agent John Dal-ziel (Dalziel) left a note at Christine and Brent Johnsons’ mobile home indicating that the package would be delivered before 10:00 a.m., Tuesday, November 12, 1991.

Shortly before 10:00 a.m. on Tuesday, Dal-ziel, posing as a U.S. Postal Service employee, delivered the package to the Johnsons’ residence. Christine met Dalziel on the front porch of the mobile home. She identified herself and accepted the package containing the two bindles. Within seconds after Christine accepted the package, Dalziel arrested Christine for possession of methamphetamine and retrieved the package from her.

Christine went inside the mobile home to tell her husband, Brent Johnson (Brent), that she had been arrested. Dalziel accompanied her, carrying the package. DCI Agent Har-vison (Harvison), who followed Christine and Dalziel into the mobile home, found and unloaded a shotgun lying inside the front door. Defendants refused to consent to a search of the mobile home.¹

Christine was taken by Beresford police to the station. Dalziel placed the package in the trunk of his car and returned to Vermillion with Harvison to obtain a search warrant. Mennega and Officer Dave Gillespie stayed inside and secured the mobile home so that evidence was not destroyed while Dalziel and Harvison were obtaining the search warrant. Brent remained in the mobile home. After approximately 1½ hours, Dalziel returned to the mobile home and executed the warrant.

Christine was found guilty of possession of methamphetamine and more than one pound of marijuana. Brent was found guilty of possession of more than one pound of marijuana. Defendants raise five issues on appeal. We affirm.

1. Search Warrant

Defendants filed Motions to Suppress the evidence obtained by the police in the search of their mobile home. According to Defendants, the failure to state in the affidavit that the package was no longer in the residence was a material omission which, if included, would have prevented the finding of probable cause upon which the search warrant was issued. The motions were denied.

“Our scope of review on a motion to suppress is whether the trial court abused its discretion. As to any factual determinations, our scope of review is the clearly erroneous standard. On appeal, this court must determine whether the trial court’s findings are against the weight of the evidence.” State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990) (citations omitted). “This court will overturn the trial court’s decision to suppress or not to suppress if we find the trial court has exercised its discretion to an end or purpose not justified by, and clearly against reason and evidence.” State v. Zachodni, 466 N.W.2d 624, 630 (S.D.1991) (citations omitted).

Defendants argue that the fruits of the search should be suppressed because the intentional omission of material facts in the affidavit invalidated the warrant. The claimed omission is the fact that the package containing methamphetamine was no longer at the Johnson residence. “The affidavit need only show facts sufficient to support a finding of probable cause. Therefore, omissions of other facts would not be misrepresentations unless they cast doubt on the existence of probable cause.” United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980) (citations omitted). “The question then becomes whether the alleged omissions would cast doubt on the existence of probable cause.” Brings Plenty, 459 N.W.2d at 401.

Probable cause justifying a search is present where the facts found by the court or the magistrate would lead a reasonable and prudent person to believe it fairly probable that a crime had been committed and that evidence relevant to the crime would be uncovered by the search. Although the evidence supporting a probable cause determination must be more than a bare suspicion, it need not establish proof beyond a reasonable doubt or even proof by preponderance.

Zachodni, 466 N.W.2d at 629 (citations omitted). In this instance, probable cause means reason to believe that contraband will be located on the premises when the search takes place. See generally United States v. Garcia, 882 F.2d 699, 703 (2nd Cir.1989), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). See also State v. Baysinger, 470 N.W.2d 840 (S.D.1991); State v. Engel, 465 N.W.2d 787 (S.D.1991).

The omission of the fact that the package was no longer in the residence does not rise to the level of a misrepresentation because it does not “cast doubt on the existence of probable cause.” Dennis, 625 F.2d at 791. The affidavit reported the interception of a package containing two grams of methamphetamine addressed to Christine Johnson and that she in fact received that package at the listed address. The accompanying letter established her knowledge that she would be receiving the package. A reasonable inference was that this was not an isolated incident and that the home contained other controlled substances, as well as incriminating evidence. Baysinger, 470 N.W.2d 840; Engel, 465 N.W.2d 787. Clearly, the affidavit together with the attached letter to Christine would lead a reasonable and prudent person to believe it fairly probable that contraband would be located in the home and that relevant evidence would be uncovered by the search. Id. Because the omitted fact was not material to a finding of probable cause, we need not consider whether its omission was intentional. Dennis, 625 F.2d at 792 (citation omitted).

Defendants also argue that the evidence seized during the search was tainted because the affidavit upon which the search warrant was issued contained fruits of an illegal entry into their home. While information that is the result of an illegal entry may not be used to obtain a search warrant by placing fruits of that entry in the search warrant affidavit, the statement “delivered to her residence” in the affidavit is not information obtained as a result of an illegal entry. The package was given to Christine outside the mobile home where she was arrested. The package was retrieved at that point and then taken into the mobile home by Dalziel, the arresting officer, only because Christine wanted to go back into the home to tell Brent that she had been arrested. The evidence was delivered and seized outside the home and was not the result of an illegal entry. While the affidavit states that the package was “delivered to her residence,” which was true, the warrant in no way depended on observations made during the securing process. See State v. Habbena, 372 N.W.2d 450, 455 (S.D.1985) (“[T]he evidence in this case shows that the preparation of the affidavit was commenced prior to the securing and the information as to the address and the fact that the buy money and additional cocaine were present in the house was obtained from a third person outside the house and prior to the entry[.]”); See generally Segura v. United States, 468 U.S. 796, 814, 104 S.Ct. 3380, 3390, 82 L.Ed.2d 599, 614-15 (1984).² Here, as in Habbena, the warrant arose from a legal source of information and therefore was valid. The evidence seized thereunder need not be suppressed. Habbena, 372 N.W.2d at 455-56.

Mennenga and Gillespie stayed inside the mobile home and secured it so that evidence was not destroyed while Dalziel and Harvison returned to Vermillion to obtain the search warrant. Conversations occurring inside the home during this time were taped and played for the jury during the trial. Defendants argue that the tape was inadmissible because it is the direct fruit of the illegal “securing” process. The securing process was not, however, illegal.

[Sjecuring a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.

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[A]n entry in the absence of exigent circumstances is illegal.... [0]fficers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues, absent exigent circumstances which, of course, would justify the entry.

Segura, 468 U.S. at 810, 812, 104 S.Ct. at 3388, 3389, 82 L.Ed.2d at 612, 613 (emphasis added) (citations omitted).³ Clearly, exigent circumstances existed. If the officers had not entered the home and secured it, it is highly probable that Brent would have removed or destroyed the evidence. See Segura, 468 U.S. at 820, 104 S.Ct. at 3393, 82 L.Ed.2d at 618 (Stevens, J., dissenting) (citing Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (authorities may enter a residence without a warrant in order to preserve evidence if there exists a demonstrable threat of imminent destruction of that evidence)). Additionally, the seizure was for a reasonable period of time. This is not an instance where a seizure, reasonable at its inception, became unreasonable because of its duration. Id. 468 U.S. at 823-24, 104 S.Ct. at 3395-96, 82 L.Ed.2d at 620-22 (while exigent circumstances may justify the entry into, and impoundment of, the premises pending a warrant, the duration must be reasonable). Therefore, the entry and securing was justified and legal.

2. Admissibility of Letters

Christine argues that the court erred in admitting statements contained in letters addressed to her, including the letter found in the package from Davis, who did not testify at trial. Christine claims the statements are inadmissible hearsay.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” SDCL 19-16-1, and “is not admissible except as provided by law or by chapters 19-9 to 19-18, inclusive, or by other rules prescribed by the Supreme Court.” SDCL 19-16-4. These letters were not, however, offered to prove the truth of the matter asserted and therefore, do not constitute hearsay. They were offered, rather, to show Christine’s knowledge of, and familiarity with, the sender, Davis, and drug trade terminology, and the fact that Christine knew the contents of the package delivered to her. United States v. Safari, 849 F.2d 891, 894 (4th Cir.1988), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988). The trial court did not err in overruling Christine’s objection to their admissibility. Id.

3. Motions for Severance

Defendants argue that the trial court erred in denying their motions for severance. SDCL 23A-6-24 provides:

Two or more defendants may be charged in the same indictment or information, if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count. (Emphasis added).

The trial court must balance the rights of the defendants to a fair trial against the interests of judicial efficiency, which includes possible prejudice to the government because of two time-consuming, expensive, and duplicitous trials. State v. Andrews, 393 N.W.2d 76, 79 (S.D.1986) (citations omitted). The decision to sever is a matter within the sound discretion of the trial court and we will not reverse a denial of a motion for severance absent a clear showing of prejudice and abuse of discretion. Id. (citations omitted).

Brent argues that he was prejudiced by the joinder of his trial with Christine’s because only a small amount of the testimony and evidence presented dealt with the marijuana charge and the trial amounted to guilt by association, particularly since he is married to Christine. “Admission of evidence against only one of several defendants does not on its own create sufficient prejudice to justify reversal when proper limiting instructions are given to the jury.” Id. (citations omitted).

In response to an objection during trial to a photograph depicting materials contained in the package delivered to Christine, the trial court stated, “Just so the jury understands, anything to do with the alleged methamphetamine only deals with Christine Johnson and certainly not Brent Johnson. He isn’t charged with methamphetamine possession, only Christine is.” The court repeated that admonition during the trial. Jury Instruction No. 17 stated that evidence relating to methamphetamine possession had no bearing on the issue of the charge against Brent. “This court has held that such language is a sufficient cautionary instruction which guards against prejudice to an individual defendant in a joint trial.” Id. (citation omitted). Brent has failed to show an abuse of discretion on the part of the trial court.

Christine claims she was incriminated by Brent’s statements made during the “securing” process under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) in that the admission of this evidence damaged her on the knowledge issue. In Bruton, the United States Supreme Court “held that an inculpatory statement as to the defendant, made by a code-fendant and related through a third party witness at trial, violates the defendant’s Sixth Amendment right to confront his accuser.” Iron Shell v. Leapley, 503 N.W.2d 868, 870 (S.D.1993) (emphasis added) (citing Bruton, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476). A review of the statements, however, fails to establish an abuse of discretion on the part of the trial court in denying severance because the statements are not inculpatory.

After Dalziel read Christine her Miranda rights, he asked her whether she wished to talk to them at that time.

Christine: “Uh, no.”

Dalziel: “Okay. Why don’t we call the PD to come down and transport.?”

Brent: “You know, for one thing, anybody can write a letter and send anything to anybody. I could sent you one.”

Dalziel: “Yeah, you could.”

Brent: “Yeah, you know.”

Dalziel: “But you were expecting this one, though, weren’t you?”

Brent: “Uh, yeah, we expect our mail all the time.”

Dalziel: “Okay. That’s good. That’ll work.”

Bruton defines inculpatory statements as “powerfully incriminating extrajudicial statements.” Id. at 135-36, 88 S.Ct. at 1627-28, 20 L.Ed.2d at 485. Contrary to Christine’s claim, she was not incriminated by Brent’s statements because they were not “powerfully incriminating.” “In the absence of a legal ground, there should be no order for severance.” Andrews, 393 N.W.2d at 79 (citation omitted). Christine has failed to “demonstrate affirmatively that the joint trial prejudiced the possibility of a fair trial.” Id. (citations omitted).

4. Lesser Included Offense Instruction

Defendants argue that the trial court should have instructed the jury on the lesser included offense of possession of less than one pound of marijuana. According to Defendants, Dalziel’s separation of the stalks and stems of the marijuana plant from the leafy portions places the quantity of marijuana into issue.

“There are two tests that must be satisfied in determining whether the trial court should submit a lesser included offense instruction to the jury. The first is a legal test, the second is factual.” State v. Black, 494 N.W.2d 377, 379 (S.D.1993) (citations omitted), aff'd, 506 N.W.2d 738 (S.D.1993). In order to meet the factual test, there must be sufficient evidence which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was. “[Tjhere must be conflicting evidence with regard to the element of the greater offense that is not an element of the lesser.” State v. Oien, 302 N.W.2d 807, 809 (S.D.1981).

The Sioux Falls Police Department chemist testified that the marijuana weighed 1.39 pounds. SDCL 22-42-1(7) defines marijuana as “all parts of any plant of the genus cannabis, whether growing or not, in its natural and unaltered state, except for drying or curing and crushing or crumbling.” (Emphasis added.) The facts in this ease simply do not support the submission of a lesser included offense instruction to the jury. Defendants have failed to demonstrate error. See Michigan,v. Marji, 180 Mich.App. 525, 447 N.W.2d 835, 838 (1989) (where evidence showed the delivery of 476.92 grams of cocaine, the evidence did not support convictions for delivery of lesser amounts and the trial court did not err in failing to instruct on these offenses).

5. Instructions on Failure to Test

During the trial, numerous items described as “green leafy substances” were marked as exhibits and placed in full view of the jury. These exhibits were objected to and not received into evidence however, because they had not been chemically tested to determine their substance. Exhibit 8, which contained the two bindles, was also never tested after the controlled delivery but was received into evidence.

Defendants argue that they were entitled to their requested “failure to test” jury instruction because these items were never tested.⁴ A review of the record indicates, however, that Defendants, in requesting their proposed jury instruction, did not argue the applicability of the instruction to any exhibits other than Exhibit 8. Therefore, as to any exhibits other than Exhibit 8, Defendants have failed to preserve the record.

As the trial court noted in refusing Defendants’ proposed jury instruction, whether Exhibit 8 contained methamphetamine was a question for the jury. The testimony indicated that after testing the substance found in the package and determining that it was methamphetamine, Agent Mennenga placed a small amount of the methamphetamine with inositol. This is not an instance where the State destroyed evidence before it was inventoried or chemically analyzed (spoilation of the evidence). See State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551, 558 (1971). (Evidence which is destroyed before it is inventoried or chemically analyzed (spoilation of the evidence) “creates an inference or presumption that it would not have supported the charges against the defendant.”) The bin-dles were not destroyed, they simply were not tested after delivery. The spoilation doctrine does not apply and the trial court was correct in refusing Defendants’ proposed instruction.⁵

We affirm.

MILLER, C.J., and AMUNDSON, J., concur. WUEST and HENDERSON, JJ., dissent.

1 . On the morning of November 12, Magistrate Mary Dell Cody had denied Dalziel’s request for an anticipatory search warrant stating that she would not sign the warrant until after the delivery was made.

2 . According to the Court in Segura:

None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners' apartment; the information came from sources wholly unconnected with the entry and was known to the agents well before the initial entry. No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged.

468 U.S. at 814, 104 S.Ct. at 3390.

3 . The Defendants claim that this court held in Habbena that the securing process is an illegal act. A review of Habbena discloses that the trial court found that the initial securing process was a violation of Habbena’s Fourth Amendment rights and suppressed a statement made to the officers before the arrival of the warrant, along with marijuana actually seen by the officers dur-mg the securing procedure. The State did not, however, seek a review of the trial court’s ruling. This court went on to note in Habbena that "the trial court found the entry to secure the premises illegal for lack of exigent circumstances and suppressed a statement made by defendant to the officers[.]” 372 N.W.2d at 454. Unlike Habbe-na, exigent circumstances existed here.

4 . Defendants' proposed jury instruction provided:

Failure of the State to preserve or properly test certain evidence, or purposeful concealment by the State of certain evidence, creates an inference or presumption that had the evidence been preserved, tested or introduced at trial, it would not have supported the charges against the Defendants, but would instead have been favorable to Defendants.

5 . This disposes of Christine's argument that her motion for judgment of acquittal should have been granted on the methamphetamine count.