#29263-a-JMK 2021 S.D. 22
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
SHAWN MICHAEL SHELTON, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA
THE HONORABLE CHERYLE W. GERING Judge
JASON R. RAVNSBORG Attorney General
SARAH THORNE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
LUCI YOUNGBERG Yankton County Public Defender Yankton, South Dakota Attorneys for defendant and appellant.
CONSIDERED ON BRIEFS JANUARY 11, 2021 OPINION FILED 04/14/21 #29263
KERN, Justice
[¶1.] Following a jury trial, Shawn Michael Shelton (Shelton) was convicted
of three felony drug offenses in connection with the sale of methamphetamine to a
confidential informant (CI). He appeals, alleging that the circuit court abused its
discretion by denying his motions to admit a written agreement with an informant
and two demonstrative exhibits and for a new trial. He also contends that the
sentence he received was cruel and unusual in violation of the Eighth Amendment.
We affirm.
Facts and Procedural History
[¶2.] Detective Joseph Erickson (Detective Erickson) of the Yankton Police
Department and Special Agent Ryan Pennock (Agent Pennock) of the South Dakota
Division of Criminal Investigation (DCI) approached a 25-year-old woman to work
as a CI to make controlled purchases of methamphetamine in the Yankton, South
Dakota community. Before being enlisted to work as a CI, the woman was regularly
contacting Shelton and purchasing methamphetamine from him on a weekly basis.
She had previously used methamphetamine with Shelton, who sometimes assisted
her in taking it intravenously. As a CI, she was instructed to negotiate purchases
in the same manner as she had done for personal use in the past. She signed a
standard written agreement including a statement that she would refrain from
using illegal substances. Further, by oral agreement, she was to receive $200 in
compensation for completing each of the five controlled purchases, totaling $1000.
[¶3.] On the evening of July 10, 2018, Detective Erickson, Agent Pennock,
and other officers attended a law enforcement briefing to prepare a plan for the CI’s
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controlled purchase of methamphetamine from Shelton that night. Detective
Erickson and Agent Pennock made contact with the CI near a middle school, located
353 feet from Shelton’s home in Yankton. The CI had been communicating with
Shelton via Facebook Messenger and made arrangements to buy half a gram of
methamphetamine for $50. After discussing safety measures and the route she
would take to and from Shelton’s home, law enforcement searched the CI and
equipped her with a transmitting and recording device. They gave her $50 of pre-
recorded, drug-buy money from the DCI Controlled Buy Fund to use in the
transaction and watched her walk in the direction of Shelton’s home. Yankton
County Deputy Sheriff Darren Moser (Deputy Moser) was parked across the street
to conduct surveillance and render aid if necessary.
[¶4.] The CI spoke with Shelton on the phone as she approached his home.
He expressed concern that someone had dropped her off, which she denied, saying
she was on her way from babysitting. When the CI arrived, Shelton was outside
sweeping the sidewalk. He was high and paranoid and said that cars had been
circling the area. Although the CI reported not seeing anything on the sidewalk,
she did see a substance she believed to be methamphetamine scattered on the stairs
going down into his basement apartment.
[¶5.] Once in the apartment, Shelton had the CI put her two phones in a
clear plastic container, which he then placed under a chair on the far side of the
living room. She told him her boyfriend had given her one of the phones. He still
suspected she was wired and wrote a note to that effect. She pulled up her shirt to
prove that she was not wearing a wire. As a result of Shelton taking her phones,
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law enforcement lost the ability to monitor what was happening for nearly eight
minutes. Police Sergeant Monty Rothenberger (Sergeant Rothenberger) was
dispatched to Shelton’s home to check on the CI’s well-being. During this time
frame, the drug transaction occurred. When Sergeant Rothenberger knocked, the
CI retrieved her phones and then answered the door. Sergeant Rothenberger asked
questions under the pretense of looking for a neighbor. Seeing that the CI was
uninjured, he went on his way, after which the CI left Shelton’s home for the post-
buy meeting location.
[¶6.] Upon her arrival, the CI was debriefed by Detective Erickson and
Agent Pennock about the transaction. She told the officers that she believed that
the substance on the stairs was methamphetamine, possibly as much as two or
more grams and that Shelton had likely dropped it because he was so high. The CI
explained that after she placed the phones in the plastic container, Shelton shaved
off and weighed a portion of methamphetamine that came out of “his pocket in a uh
like a round container like uh, like a tobacco container with those speckled packets
in it.” Detective Erickson asked if she meant a chewing tobacco tin, and she said
“yeah.” She also explained that just before Sergeant Rothenberger knocked on
Shelton’s door, Shelton placed the methamphetamine in a baggie. The CI gave him
the drug buy money and took the baggie. She reported that she declined an offer to
use it with him and did not arrange any future deals. Detective Erickson performed
a standard search of her person and confirmed that she had turned over all of the
methamphetamine she had acquired. The officers stopped the recording, paid her
$200, and drove her to another location. The South Dakota Public Health
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Laboratory subsequently tested the contents of the bag and confirmed that the
substance was forty-eight hundredths of a gram of methamphetamine.
[¶7.] Shelton was in the custody of the Department of Corrections serving
separate sentences when he was indicted by a Yankton County grand jury for
possession of a controlled substance, in violation of SDCL 22-42-5; distribution of a
controlled substance, in violation of SDCL 22-42-2; and distribution of a controlled
substance in a drug free zone, in violation of SDCL 22-42-19. The State also filed a
habitual offender information alleging that Shelton had seven prior felony
convictions, subjecting him to a two-level enhancement for each of the charges
levied against him. SDCL 22-7-8.1.
[¶8.] A two-day jury trial began on December 12, 2019. Before calling the
first witness at trial, the State advised the court that it had prepared a transcript of
the tape of the CI’s interaction with Shelton on July 10, 2018. The State requested
permission for the jury to follow along with the transcript while the audio recording
was played. The court not only granted the request but ordered that both the tape
and transcript would be admitted into evidence and sent with the jury for their use
during deliberations. Shelton agreed that the transcript was accurate and had no
objection to the transcript being admitted for the jury’s consideration.
[¶9.] Prior to the time that the tape was played, however, the court, on its
own initiative, revisited the issue and changed its ruling on the admissibility of the
transcript. After reviewing caselaw and South Dakota Pattern Jury Instruction 4-
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1-5, 1 the court ordered that the transcript would be collected after the tape was
played and not admitted as substantive evidence.
[¶10.] The court also presented the parties with a proposed limiting
instruction advising the jury that the recording itself was the primary evidence and
the transcript merely a demonstrative aid. Neither party objected to the
instruction. Before the audio recording was played, the court read the instruction to
the jury and gave each member a written copy.
[¶11.] Shelton elected not to testify at trial, instead developing his defense
that the CI brought the drugs to the transaction through his cross-examination of
the witnesses. 2 At the close of the evidence, Shelton moved for a directed verdict,
which the circuit court denied, and the case was submitted to the jury. Despite the
court’s ruling to the contrary, the transcript was inadvertently included with the
other exhibits and sent back to the jury. The jurors wrote a note to the bailiff
asking for a device to listen to the recording again but reached a verdict before the
court responded. The jury convicted Shelton of all three counts.
[¶12.] Shelton filed a motion for a new trial, arguing that he was prejudiced
by the circuit court’s error. He contended that allowing the transcript to go to the
jury violated the court’s ruling and was contrary to law. At a January 2, 2020
hearing on the motion, the circuit court denied Shelton’s request for a new trial,
1. This instruction includes a comment advising that “[t]he transcript, absent stipulation of the parties, should not go to the jury room. See United States v. Kirk, 534 F.2d 1262, 1276 (8th Cir. 1976).”
2. Although defense counsel referred to a motion for a directed verdict, such motions were abolished by SDCL 23A-23-1, which provides that “motions for judgment of acquittal shall be used in their place.”
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stating that it would have allowed the transcript to go back with the jury if the
parties had so requested because the audio was garbled and difficult to understand
without it.
[¶13.] Shelton admitted to six of the seven prior felony convictions listed in
the habitual offender information. The court ordered a presentence report and
scheduled a sentencing hearing. The court sentenced Shelton to serve fifteen years
for the possession and distribution counts, to run concurrently to each other and to
the sentences he was currently serving. 3 For the offense of distribution in a drug
free zone, the court sentenced Shelton to serve twenty-five years, with fifteen years
suspended, to run consecutively to his other sentences.
[¶14.] Shelton appeals, raising three issues which we reformulate as follows:
I. Whether the circuit court abused its discretion by refusing to admit the written CI agreement and precluding demonstrative exhibits.
II. Whether the circuit court abused its discretion in denying Shelton’s motion for new trial.
III. Whether Shelton’s sentence constitutes cruel and unusual punishment.
Issues
I. Whether the circuit court abused its discretion by refusing to admit the written CI agreement and precluding demonstrative exhibits.
[¶15.] Shelton contests two evidentiary rulings made by the circuit court
during his jury trial. First, Shelton sought admission of the written CI agreement
3. Shelton was serving time in the penitentiary on four prior Yankton County felony convictions.
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for the purpose of proving that the CI was paid. The State objected on the grounds
of relevance, arguing the desired evidence was not in the agreement. Additionally,
the State pointed to its public policy interest in protecting CI agreements from
becoming a matter of public knowledge. The circuit court agreed and denied
Shelton’s request, finding it irrelevant and unfairly prejudicial. Second, Shelton
requested the opportunity to use two demonstrative exhibits—a chewing tobacco tin
and a golf ball—during the cross-examination of the CI. The circuit court ruled that
even if the evidence was relevant, any probative value would be substantially
outweighed by the danger of misleading the jury and, with reference to the golf ball,
a needless presentation of evidence.
[¶16.] “‘[A] trial court’s evidentiary rulings are presumed to be correct.’ We
review evidentiary rulings for abuse of discretion.” State v. Bausch, 2017 S.D. 1, ¶
12, 889 N.W.2d 404, 408 (quoting State v. Crawford, 2007 S.D. 20, ¶ 13, 729 N.W.2d
346, 349) (alteration in original). “An abuse of discretion is a fundamental error of
judgment, a choice outside the range of permissible choices, a decision, which, on
full consideration, is arbitrary or unreasonable.” State v. Rodriguez, 2020 S.D. 68, ¶
41, 952 N.W.2d 244, 256 (quoting State v. Spaniol, 2017 S.D. 20, ¶ 12, 895 N.W.2d
329, 335). To warrant reversal, “not only must error be demonstrated, but it must
also be shown to be prejudicial.” State v. Stone, 2019 S.D. 18, ¶ 22, 925 N.W.2d 488,
497 (quoting Bausch, 2017 S.D. 1, ¶ 12, 889 N.W.2d at 408). “Prejudicial error is
error which in all probability produced some effect upon the jury’s verdict and is
harmful to the substantial rights of the party assigning it.” Casper Lodging, LLC v.
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Akers, 2015 S.D. 80, ¶ 60, 871 N.W.2d 477, 496 (quoting Harter v. Plains Ins. Co.,
Inc., 1998 S.D. 59, ¶ 32, 579 N.W.2d 625, 633).
[¶17.] “Evidence is relevant if: (a) [i]t has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) [t]he fact is of
consequence in determining the action.” SDCL 19-19-401. When evidence has been
deemed relevant, “the balance tips emphatically in favor of admission unless the
dangers set out in Rule 403 ‘substantially’ outweigh probative value.” State v.
Janklow, 2005 S.D. 25, ¶ 38, 693 N.W.2d 685, 698 (quoting State v. Wright, 1999
S.D. 50, ¶ 14, 593 N.W.2d 792, 799). “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” SDCL 19-19-403.
“Prejudice ‘refers to the unfair advantage that results from the capacity of the
evidence to persuade by illegitimate means.’” State v. Birdshead, 2015 S.D. 77, ¶
63, 871 N.W.2d 62, 83 (quoting State v. Moeller, 1996 S.D. 60, ¶ 38, 548 N.W.2d 465,
478).
[¶18.] We turn first to the circuit court’s refusal to admit the written CI
agreement. With reference to compensation, the agreement provided that law
enforcement would “furnish funds only to cover the purchase price of any controlled
substances or contraband purchased after this agreement is in effect[.]” The court
found that “the actual document itself has no purpose at this point in time” and
excluded it under Rule 403 as cumulative and misleading. Shelton argues that the
oral agreement was dependent on the written agreement and that any confusion
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about the two agreements could have been cleared up by questioning the witnesses.
In response, the State argues that the written CI agreement should remain
confidential and was irrelevant for the purpose for which Shelton sought to
introduce it because it did not include the terms of the CI’s compensation.
[¶19.] Much of our caselaw pertaining to CIs concerns the tension between an
individual defendant’s interest in disclosure of a CI’s identity and the State’s public
policy interest in nondisclosure. While the question herein involves admission of
the written CI agreement rather than the CI’s identity, much of the same reasoning
applies. The disclosure of information regarding CIs is not always appropriate.
State v. Wellner, 318 N.W.2d 324, 332 (S.D. 1982) (“The public’s interest in
protecting the flow of information must be balanced against the individual’s right to
prepare his defense.” (citing Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623,
629, 1 L. Ed. 2d 639 (1957))). “While there is no litmus test for determining when
disclosure is required, [the Eighth Circuit has] held that perhaps the most
important factor for a court in this circumstance to consider is whether the [CI’s]
information is material to the defense.” United States v. Lapsley, 334 F.3d 762, 764
(8th Cir. 2003) (citing United States v. Harrington, 951 F.2d 876, 877 (8th Cir.
1991)). “[E]vidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Id. (quoting Harrington, 951 F.2d at 878) (alteration in original).
[¶20.] Guided by these principles, we find no abuse of discretion here.
Shelton wanted the jury to see that the CI was compensated for her role in the
controlled buy, but the written agreement did not provide this information. It
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addressed only law enforcement’s role in providing the funds necessary to purchase
the controlled substances. Even though the agreement was not introduced, Shelton
was permitted to fully explore the payment arrangements between the State and
the CI both generally and for the July 10, 2018 transaction. Shelton thoroughly
cross-examined the CI, Detective Erickson, and Agent Pennock on this point, and all
acknowledged, including the CI, that she was paid for conducting the controlled
buy. The circuit court did not err in finding that the limited probative value of the
written agreement, as to the fact for which Shelton sought its admission, was
substantially outweighed by the dangers of confusing the issues and presenting
cumulative evidence. The court’s ruling was not arbitrary or unreasonable, and
Shelton did not show that the written agreement itself was material to his defense
or that he was in any way prejudiced by its exclusion.
[¶21.] Nor do we conclude that the circuit court abused its discretion in
refusing to permit the use of a chewing tobacco tin and a golf ball as demonstrative
evidence. The circuit court denied the request, finding that, based on the
descriptions that the CI gave to the officers, Shelton had failed to establish that the
tin possessed by defense counsel was representative of the one used by Shelton.
Moreover, Shelton was unable to lay further foundation in his examination of the
CI. Shelton asked the CI on cross-examination if the methamphetamine was in a
tobacco container, to which she testified: “Yeah. It was a little like that, but I don’t
know if that’s exactly what it was.” Because chewing tobacco tins come in various
sizes and the CI did not identify the type of tin that she saw with enough specificity,
the court denied admission of the particular tin proffered. As for the golf ball, the
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court remarked that everyone had seen a golf ball, finding it unnecessary to
introduce one into evidence.
[¶22.] Shelton argues that he desired to impeach the CI’s testimony by
allowing the jury to see whether a golf ball-sized chunk of methamphetamine could
fit into a chewing tobacco tin. In Shelton’s view, the circuit court abused its
discretion by not allowing the demonstration. The State, however, asserts the
identification of the container as any particular type of tin can be attributed more to
law enforcement’s suggestions than the CI’s own words and that the dimensions of
the container are not a fact of consequence in the case. The State contends that
Shelton failed to show that the size and amount of methamphetamine in the
container were pertinent to the verdict.
[¶23.] Our court has long recognized the admissibility of demonstrative
evidence. State v. Hartman, 256 N.W.2d 131, 137 (S.D. 1977). The purpose of
demonstrative evidence is not its standalone probative value but rather making
other admitted evidence easier for the jury to comprehend. See Robert P. Mosteller,
et al., McCormick on Evidence § 214 (8th ed. 2020). “A demonstrative or illustrative
exhibit ‘is admissible if it clearly depicts the factual situations and will allow the
trier of facts to more clearly understand a witness’s descriptions.’” Kaiser v.
University Physicians Clinic, 2006 S.D. 95, ¶ 24 n.3, 724 N.W.2d 186, 192 n.3
(quoting Hartman, 256 N.W.2d at 137).
[¶24.] To lay the foundation for a duplicate of unavailable evidence,
“[t]ypically, an aid will be identified by a witness, during the witness’s testimony, as
a substantially correct representation of something the witness once perceived and
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is now describing.” Mosteller, supra ¶ 23, § 214. We have held that this test was
satisfied when the underlying substantive evidence was properly admitted and the
demonstrative aid based upon it contained no additional information. State v.
Rough Surface, 440 N.W.2d 746, 755 (S.D. 1989) (referring to two charts
summarizing admitted evidence). “Whether the admission of a particular
demonstrative aid will in fact be helpful, or will instead tend to confuse or mislead
the trier, is a matter within the sound discretion of the trial court . . . .” Mosteller,
supra ¶ 23, § 214.
[¶25.] Given the lack of certainty about the type of container from which
Shelton produced the methamphetamine, the circuit court did not err in finding
inadequate foundation for the exhibit. In order to introduce a demonstrative aid to
illustrate the CI’s testimony, Shelton’s counsel needed to show that the aid clearly
depicted the container the CI perceived and was describing. See SDCL 19-19-901
(requiring the proponent to “produce evidence sufficient to support a finding that
the item is what the proponent claims it is”). Counsel failed to do so. Regardless,
the CI’s description of the container from which Shelton produced the
methamphetamine was included in the recording played for the jury and admitted
into evidence. Shelton was also able to further develop the CI’s testimony through
cross-examination. Additionally, after the container was properly excluded, the golf
ball had no bearing on any of the issues in the case as the dimensions of the chunk
of methamphetamine were not at issue in this case. The circuit court was within its
discretion in denying this demonstrative evidence, and Shelton has not shown that
he was prejudiced by the exclusion of the evidence.
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II. Whether the circuit court abused its discretion in denying Shelton’s motion for new trial.
[¶26.] Shelton argues that denying his motion for a new trial was an abuse of
discretion because, in his view, if the transcript had not been admitted, the jury
would have reached a different conclusion. In response, the State asserts that
Shelton, who failed to object to the use of the transcript, its accuracy, or the court’s
limiting instruction regarding its proper use, has failed to show any prejudice
resulting from the jury’s consideration of the transcript.
[¶27.] We review rulings on motions for new trials for an abuse of discretion.
State v. Rolfe, 2014 S.D. 47, ¶ 9, 851 N.W.2d 897, 901 (citing State v. Zephier, 2012
S.D. 16, ¶ 15, 810 N.W.2d 770, 773). “We review a circuit court’s denial of a motion
for a new trial under SDCL 23A-29-1, the same as its civil counterpart SDCL 15-6-
59(b).” State v. Muhm, 2009 S.D. 100, ¶ 43, 775 N.W.2d 508, 523. “[A] new trial
may follow only where the violation has prejudiced the party or denied such party a
fair trial.” State v. Hofman, 1997 S.D. 51, ¶ 13, 562 N.W.2d 898, 902 (quoting
Robbins v. Buntrock, 1996 S.D. 84, ¶ 6, 550 N.W.2d 422, 425) (alteration in
original). When there is evidentiary support for the circuit court’s findings
underlying its decision to deny a motion for a new trial, this Court finds no abuse of
discretion. State v. Condon, 2007 S.D. 124, ¶ 46, 742 N.W.2d 861, 875.
[¶28.] Although the circuit court initially admitted the transcript, it changed
course, allowing its use for demonstrative purposes only. The transcript, however,
was inadvertently sent back to the jury with the exhibits. SDCL 23A-25-7 permits
the jury to take only the “exhibits and all papers which have been received as
evidence in the case[]” into the jury room with them during deliberations. “The
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delivery to the jury for their consideration of an exhibit not received in evidence
constitutes error.” Osborne v. United States, 351 F.2d 111, 115 (8th Cir. 1965)
(citation omitted). See also State v. Midgett, 2004 S.D. 57, ¶ 20, 680 N.W.2d 288,
293 (holding that “[a]llowing the jury to consider such non-admitted evidence was
prejudicial error that require[d] reversal”).
[¶29.] Because the transcript was not received as evidence, we review the
error to determine its prejudicial effect. Here, the circuit court found that the
quality of the audio recording was garbled, and, if the parties had asked, the court
would have admitted the transcript for substantive purposes. 4 In this case, Shelton
does not dispute that the State laid the proper foundation for admission of the
4. “Under modern American practice it is common to allow many types of tangible exhibits to be taken by the jury into the jury room for consideration during the deliberations, provided that the exhibits have been formally admitted into evidence. The question whether a particular exhibit may be taken into the jury room is widely viewed as subject to discretionary control by the trial judge . . . .” Mosteller, supra ¶ 23, § 220.
“Courts have frequently commented that such [testimonial] writings, viewed as simply a different form of testimony, should not be unduly emphasized over oral testimony in the case. For this reason, the transcript of an audio recording which may be given to the jury during the playing of the recording is usually treated as a demonstrative aid to the jury’s understanding. Thus, it is not admitted as evidence of the recording’s contents and is not taken into the jury room during deliberation.” Id.
We note that courts from other jurisdictions have affirmed convictions where demonstrative transcripts were sent to juries at their request during deliberations, absent a showing that the transcripts were inaccurate or that specific prejudice had occurred. See, e.g., United States v. Garcia, 334 F. App’x 609, 616-18 (5th Cir. 2009) (holding any error harmless when an appropriate limiting instruction was given and the accuracy of the transcript was unchallenged); United States v. Trent, 306 F. App’x 482, 487 (11th Cir. 2009) (holding use of a transcript not formally marked into evidence was not error absent showing of inaccuracy or specific prejudice, especially when portions of the recording were inaudible).
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recording itself. And the CI and law enforcement agents involved with the
recording testified at trial. This is significant because, while the recording
corroborated the CI’s version of what occurred, the recording did not pick up the
exchange of drugs for money, and, accordingly, the transcript did not reference the
actual drug buy.
[¶30.] In addition, Shelton raised no objection to the admissibility of the
transcript as a demonstrative aid at trial, and the jury followed along with the
transcript while the audio recording was played. Before the jury received the
transcript and the recording was played, the court gave a limiting instruction both
orally and in writing identifying the recording as the primary evidence. 5 “We
presume the jury follows the [circuit] court’s limiting instructions.” Stone, 2019
5. Limiting Instruction No. 1 reads as follows: As you have heard, there is a typewritten transcript of the tape recording you are about to hear. That transcript also undertakes to identify the speakers engaged in the conversation. You are permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you identify the speakers. The transcript, however, is not evidence. Whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the tape recording. The tape recording itself is the primary evidence of its own contents. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent. Differences between what you hear in the recording and read in the transcript may be caused by such things as the inflection in a speaker’s voice, or by inaccuracies in the transcript. You should, therefore, rely on what you hear rather than what you read when there is a difference.
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S.D. 18, ¶ 20, 925 N.W.2d at 496 (quoting State v. Ralios, 2010 S.D. 43, ¶ 47, 783
N.W.2d 647, 660).
[¶31.] Although the jurors were not meant to have the transcript during
deliberations, they had the recording available for their review. Where the jury had
already considered the transcript as a demonstrative aid when it first heard the
recording during trial, Shelton has not shown that the jury could have or likely
would have reached a different verdict had the transcript not been included with
the exhibits sent to the jury deliberation room. 6
[¶32.] Therefore, while the transcript was not intended to go back with the
jury, the error was not prejudicial. The court properly advised the jury that the
tape recording of the buy was the best evidence of its own contents. The CI testified
about the details of the controlled buy and was subject to cross-examination. The
recording and the testimony provided sufficient evidentiary support for the jury to
reach its verdict. The circuit court did not abuse its discretion in denying the
motion for a new trial.
6. The Supreme Court of Wyoming held, under a plain error analysis, that allowing non-admitted demonstrative models used at trial to be taken into the jury room was erroneous but not sufficiently prejudicial to warrant reversal. Worcester v. Wyoming, 30 P.3d 47, 51-52 (Wyo. 2001) (reasoning that both prosecution and defense used the evidence, defense counsel had the opportunity to cross-examine the witness, and, as it was impossible to be sure what use, if any, the jury made of the demonstrative evidence, there was no reason to believe the outcome would have been more favorable to the defendant).
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III. Whether Shelton’s sentence constitutes cruel and unusual punishment.
[¶33.] Shelton contends that his sentence is grossly disproportionate and
constitutes cruel and unusual punishment under the Eighth Amendment. He
argues that the circuit court was predisposed to sentence him harshly based on the
court’s comment that it believed he would relapse in the future. In response, the
State argues that “Shelton has not shown that a term of years in the penitentiary is
a cruel and unusual punishment for a defendant with at least six prior felony drug-
related convictions, including two for distribution.” 7
[¶34.] “We review de novo whether a defendant’s sentence is cruel and
unusual in violation of the Eighth Amendment.” State v. Quevedo, 2020 S.D. 42, ¶
19, 947 N.W.2d 402, 406 (quoting State v. Jensen, 2017 S.D. 18, ¶ 9, 894 N.W.2d
397, 400). “[T]he Eighth Amendment does not require strict proportionality
between the crime and the sentence, but instead ‘forbids only extreme sentences
that are “grossly disproportionate” to the crime.’” Id. ¶ 37, 947 N.W.2d at 410
(quoting State v. Diaz, 2016 S.D. 78, ¶ 51, 887 N.W.2d 751, 766).
[¶35.] Following the United States Supreme Court’s lead, we elected to make
a “course correction” in our Eighth Amendment jurisprudence. See State v. Rice,
2016 S.D. 18, ¶ 21, 877 N.W.2d 75, 82; see also Harmelin v. Michigan, 501 U.S. 957,
1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d 836 (1991). “Our inquiry for determining
7. Although the habitual offender information included only one prior conviction in 2016 for possession with intent to distribute, the circuit court was aware that in 2013, Shelton bought methamphetamine from an undercover agent and in 2018, as a result of a traffic stop, was found in possession of more than an ounce of methamphetamine. Shelton was never charged for these offenses. Rather, both incidents led to parole violations.
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gross disproportionality is [now] well established[.]” State v. Holler, 2020 S.D. 28, ¶
11, 944 N.W.2d 339, 342. Our analysis begins with a comparison of “the gravity of
the offense and the harshness of the penalty.” State v. Chipps, 2016 S.D. 8, ¶ 38,
874 N.W.2d 475, 488 (quoting State v. Garreau, 2015 S.D. 36, ¶ 9, 864 N.W.2d 771,
775). “This comparison rarely ‘leads to an inference of gross disproportionality’ and
typically marks the end of . . . review[.]” Id. (quoting Garreau, 2015 S.D. 36, ¶ 9,
864 N.W.2d at 775) (alteration in original).
[¶36.] “[T]he gravity of the offense refers to the offense’s relative position on
the spectrum of all criminality.” Id. ¶ 35, 874 N.W.2d at 487 (citation omitted).
When an offender has committed prior offenses, we have concluded that “if the
sentence is enhanced because of the offender’s recidivism, then the gravity of his
past offenses also contributes to the gravity of the present offense.” Id. ¶ 36, 874
N.W.2d at 488 (citing Ewing v. California, 538 U.S. 11, 28, 123 S. Ct. 1179, 1189,
155 L. Ed. 2d 108 (2003)).
[¶37.] When examining the harshness of the penalty, we consider “the
penalty’s relative position on the spectrum of all permitted punishments.” Id. ¶ 37,
874 N.W.2d at 488 (citation omitted). The most severe punishments authorized by
the Legislature include the death penalty (class A felonies), mandatory life in prison
(class A and B felonies), and non-mandatory life sentences (class C felonies). See
SDCL 22-6-1. There are six felony classifications that are less severe, setting forth
maximum sentences ranging from 50 years for a class one felony down to two years
for a class six felony. See id. We also consider whether a defendant may be eligible
for parole in our examination of the sentence imposed. Chipps, 2016 S.D. 8, ¶ 37,
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874 N.W.2d at 488 (citation omitted). When a defendant receives multiple
sentences, “we evaluate the individual sentence for each count, [as] opposed to
scrutinizing the aggregate sentence.” State v. Uhing, 2016 S.D. 93, ¶ 18, 888
N.W.2d 550, 556 (quoting State v. Dubois, 2008 S.D. 15, ¶ 41, 746 N.W.2d 197, 210).
[¶38.] We begin by examining the gravity of Shelton’s offenses. Shelton was
found guilty of possession, distribution, and distribution in a drug free zone. The
latter offense occurred near a middle school and a playground. He admitted to
committing six of the seven prior drug-related felonies as alleged in the habitual
offender information, one involving distribution. We have previously observed that:
While [certain drug offenses] are classified as nonviolent in nature, they are nonetheless serious felonies. “Selling drugs is a harsh and unsavory business. Drug abuse has devastated countless American youth to include young South Dakotans. Drugs are a peril to our society. Our Legislature, recognizing this, made manufacture and distribution of certain controlled substances . . . a felony—a harsh crime.”
Uhing, 2016 S.D. 93, ¶ 17, 888 N.W.2d at 555-56 (quoting State v. Pettis, 333
N.W.2d 717, 720 (S.D. 1983)) (cleaned up). Indeed, even nonviolent drug offenses
pose significant risks to the public. 8
[¶39.] Next, we examine the harshness of Shelton’s sentences. Shelton,
having admitted to committing “three or more [prior] non-violent felonies[,]” was
subject to a two-level enhancement for each offense. SDCL 22-7-8.1. The circuit
8. Distributing a “significant amount of controlled substances[,]” such as methamphetamine, “inevitably cause[s] devastation to the community in which drugs [are] sold[.]” United States v. Nunez-Hernandez, No. CR 14-20 (08) (MJD), 2020 WL 6682494, at *2 (D. Minn. 2020). See also Terrebonne v. Butler, 820 F.2d 156, 158 (5th Cir. 1987) (“[I]t seems apparent that the retail dealer who sells in small amounts to the ultimate consumer is as vital a component in the . . . distribution chain as any other[.]”).
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court sentenced Shelton to two concurrent terms of fifteen years for the possession
and distribution charges. Because this was Shelton’s second distribution offense, he
was subject to a minimum mandatory sentence in the state penitentiary of at least
ten years, which could not be suspended, unless the court found mitigating
circumstances. See SDCL 22-42-2. For the offense of distribution within a drug free
zone, a class four felony carrying a minimum mandatory sentence of five years to be
served consecutively to the sentence imposed for the principal felony, Shelton
received a twenty-five-year sentence with fifteen years suspended. SDCL 22-42-19.
While this minimum mandatory sentence could also be suspended upon a finding of
mitigating circumstances, the court found none to justify deviation for either
offense.
[¶40.] Shelton has been sentenced to a term of years for each count, and he is
eligible for parole. Per the statutes applicable to Shelton’s crimes, he could have
faced an aggregate sentence of 65 years had he received maximum consecutive
sentences for each count. Instead, he may be released on parole in as few as twelve
years. The punishments imposed, when compared to the gravity of his offenses, do
not appear grossly disproportionate, ending our review within the scope of the
Eighth Amendment. Shelton’s punishments as a habitual offender for possession,
distribution, and distribution in a drug free zone are not cruel and unusual under
the Eighth Amendment.
Conclusion
[¶41.] The circuit court did not abuse its discretion by refusing to admit the
written CI agreement into evidence or by precluding the demonstrative exhibits.
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Shelton was able to cross-examine the CI and law enforcement to establish the
terms of the CI’s payment. The CI’s perception of the container from which Shelton
produced the methamphetamine was described in the recording that was admitted
into evidence, and Shelton was able to further confront the CI’s testimony through
cross-examination. Nor did the court abuse its discretion in denying Shelton’s
motion for a new trial. While the transcript was inadvertently sent to the jury,
Shelton has failed to establish that he was prejudiced. The court gave the jury a
proper limiting instruction, the jury had already heard the recording with the aid of
the transcript, and Shelton raised no objection to the use of the transcript at any
time before or during trial.
[¶42.] Shelton is a habitual offender with six prior drug convictions. His
sentence for three additional drug felonies, two of which the court permitted to run
concurrently while suspending a portion of the third, is not grossly disproportionate
to his crimes, or cruel and unusual.
[¶43.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
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