*1 Dakota, South Plaintiff STATE Respondent, HERMAN, Oleson, a/k/a Dennis
Dennis Appellant.
Defendant
No. Court of South Dakota.
Supreme 29, 1977.
April
455 marijuana of to others in order to avoid blowing his cover.” unsuccessfully approached the Carlson defendant, purchase proposing marijuana to on at least two During from him occasions. 17, 1974, Carlson, evening of December chance, encountered the defendant a and girl inquired at a Pierre tavern and of the availability drugs. Carlson, of According to he “bags the defendant indicated had of which he would sell at marijuana” per $25 bag. proceeded and defendant Carlson to car where the defendant sold defendant’s “marijuana” of to Carlson. one presented testimony at- The defendant tempting to establish an alibi defense. He girl they friend testified that were at and a apartment period for a of time from her to the prior alleged hour sale until one They thereafter. testi- three hours further Janklow, Gen., Charles Atty. 17, 1974, J. William no time on December fied that at Gen., Pierre, Atty. for Dorothy, Asst. speak L. an occasion to see or to they have did respondent. Carlson, and plaintiff although they being admitted at evening. earlier in the the tavern Jr., Pierre, Poches, Fort for de- Charles appellant. and assignments fendant of The defendant’s error (1) credibility issues: of the in-
raise three ZASTROW, formant, (2) sufficiency Justice. of and physical of evidence. defendant, Herman, appeals Dennis the Circuit Court of conviction in his from alleges The defendant that the ev for the unauthor- Judicial Circuit the Sixth to support idence was insufficient ver of controlled substance distribution ized solely the infor upon dict because rested reverse. narcotics informant. We to a testimony was mant whose unbelievable. allegation testimony that Carlson’s was informant, Carlson, Richard was ar- unworthy and of belief does inconsistent charged of mari- possession with rested and question present reviewable this Howard, Dakota. Because at South juana The inconsistencies in the court. drug cooperation reporting activi- of his fully presented to the jury of Carlson were County enforcement offi- to Miner law ties counsel in by defendant’s his cross-examina probation cials, placed he was closing argument. It is the func tion of plea to misdemeanor guilty jury of resolve conflicts in the tion marijuana. to determine the credibility evidence of Criminal Dakota Division Under South weight of and the their testimo witnesses Investigation (D.C.I.) sponsorship, Carlson will not'interfere ny. This court eventually paid became a narcotics infor- jury to believe or discretion disbe agencies enforcement in sev- for law mant Weinandt, 1969, witnesses. State v. lieve counties in the state. In November of eral 73; 322, 171 Shank, N.W.2d v. State by Hughes County employed he N.W.2d attempt “investigate” drug activity and subsequent for “drug Carlson’s conviction drugs and narcotics purchase (see County in Beadle v. Kiss capacity, perjury Carlson admit- State In this pushers.” 1977, S.D., 330) ner, did not dispensed small amounts tedly smoked Al- testimony in this case. involve mailed to the State Chemical Laboratory the inherent diffi- though emphasize it does at Vermillion. (see informants” using “narcotics
culties stipulated then Counsel admission Gerber, 1976, S.D., 241 N.W.2d following laboratory report in lieu of question raises no 720), that conviction Roger the oral Mathison: is evidence of the use If there appeal. *3 it testimony, must first be perjured State’s LABORATORY “STATE CHEMICAL Vermillion, 2Ex. court for a to the trial factual presented 3-13-75 (SDCL a new a motion for trial finding by n Terry Special Agent. LLS1 Baum. PCI (SDCL 23-50-2(8)), motion to remand 23- a Box 1237 P. O. 51-15), petition post-conviction for re- or Dakota_ 2/7/75 Pierre. South Date 23-52-1(6)). (SDCL having There view Marihuana_ Description Material for Sample proceedings or there no such been by 12/20 You Submitted for this court to decide. See 24 is no issue Case Delivered No. 47700-15 75-4208 Lab. No. 1606(14). Law Criminal § C.J.S. Mail on 12/20/74 A.M. First Class Tetrahydracannabinol in 0.95 oz. Cannabis. physical evidence Roger Analyst Mathison problem. creates different Herman” preliminary hearing, Carlson testi- At purchase that of the one fied the preliminary record of hearing “marijuana” from the defendant on bag of although marked, plastic shows that bag 1974, he retained it in his December or identified admitted as evidence. m., until 6:30 a. on December The state concedes that bag of material thereafter, he delivered it 1974. Sometime marijuana as identified the laboratory Hollingsworth, Drug Herb Enforcement report was not in fact bag purchased Attorney for the General. Holl- Supervisor the defendant. receiving testified that after ingsworth trial, Carlson, At the state discovered the bag from he locked in his desk er- brought forth Agent ror and Exhibit gave Special until he D.C.I. which con- plastic during bags, Baum the afternoon of De- sisted of two one Jerry inside the Agent bag Baum confirmed other. The outer had the following cember receipt tape and testified further that he information written on paper that assigned a case number stickers: (Illegible) 7-8-75 75-146 ‘DATE 10:30 A.M. EVIDENCE DATE EVIDENCE ¾ n JB Dennis Herman 12-19-74 12-19-74 OF CRIMINAL INV. DIVISION OF CRIMINAL INV. n NUMBER DIVISION NUMBER HDH 47700-15 Pierre, So. Dak. 57501" Pierre, So. Dak.
“75-3805 x'Receivedfrom Herb Hollingsworth at m 12-19-74 10:30 a Jerry Baum
(68)" "States Ex 1 7-8-75 mo" 1. Handwritten matter is in italics. plastic bag contains the follow- or inner settled record in the preliminary hearing sticker: paper aon information
ing transcripts. The court or trial trial has settled is true
certified record 15-29-13. correct. SDCL The defendant claims establish failed to a sufficient chain of cus- tody Exhibit 1 for its admission as evi- dence. offered, When real evidence is changed custody The chain adequate foundation for requires admission claimed substantially at the trial. Carlson object offered is the time he delivered the exact that he knew object which was involved incident m., Hollingsworth, e., i. a. 7:10 bag to *4 the object and that condition of the is 18,1974. Hollingsworth testified December substantially unchanged. object If the of bag the in his retained that he possesses fered characteristics which make m., 19, 1974, a. on December until 10:30 identifiable, or unique readily and if the to Agent delivered Baum. when it was composition object of the makes it relative testimony changed he asserted Baum’s to change, the ly impervious trial court has Exhibit received 1 from Holl- he had that object discretion to the broad admit the 19,1974, and that it ingsworth on December of identifying the basis the ob 20, 1974, that December he was not until in ject as the one involved the incident and bag laboratory. to the the mailed substantially unchanged that it is in con analyst laboratory the state testified Christmas, v. 1968, dition. State 83 S.D. 1 in the mail he received Exhibit 506, N.W.2d 125. 162 23, 1974. He further testified December However, the with object then marked “lab where the is
that he
offered
not
74-28-05.”
identifiable or
readily
distinguishable,
number
or is
by
to
susceptible
alteration mistaken substi
repre-
attorney’s
the state’s
upon
Based
contamination,
tution, tampering, or
a sub
problem
the
was the court
sentation
stantially more elaborate foundation is nec
attaching
wrong
in
the
lab-
reporter’s error
essary.
requires
Such
foundation
testi
preliminary
to
report
hearing
the
oratory
mony tracing the “chain of custody” of the
the trial court admitted Exhibit
transcript,
object
completeness
sufficient
to ren
objection and
defendant’s
al-
1 over the
improbable
original
der it
item has
testify that it
contained
lowed Mathison
mistakenly exchanged
been
with another or
court,
marijuana.
The trial
0.94 ounce
by tampering
has been altered
or contami
conference,
unreported bench
re-
after an
Christmas,
v.
supra;
nation. State
State v.
cross-examination
any
by
allow
fused to
Watson, 1975,
839;
S.D., 231 N.W.2d
State
the discrepancies
about
con-
counsel
defense
1975,
Anderberg,
232
v.
N.W.2d 254.
the exhibit.
cerning
Lunsford, 1973, Iowa,
v.
204
.2d
State
N.W
of this issue must
Our discussion
613;
709.
22A C.J.S. Criminal Law §
by recognizing that
court
prefaced
be
is an item which is not
Marijuana
readily
as it
in the
the record
is settled
must take
(see
1972,Iowa,
v. Grady,
identifiable
Davis &
v. McKil
lower court.
Daniels Co.
493) and,
displayed
as amply
by
544,
1917,
does no bag.3 questions The state asked which DUNN, J.,C. and WOLLMAN and MOR- part on the ability show an would GAN, JJ., concur. identify by any exhibit chemist other PORTER, J., specially. concurs do his or marks. initials or numbers Nor *5 exhibit, signature appear as on the was true PORTER, Justice (concurring specially). agents. Quanrude, the DCI See I concur in opinion court, 1974, Iowa, 467. 222 N.W.2d exception. addition, state only In established I am unablé to determine from the record kept by the exhibit chemist the trial court denied defendant the at which January time he until right to cross-examine the state chemist. analysis test of the mate- conducted We need not reach issue any event custody safe-keeping rial. since we have held Exhibit I inadmissible 23,1975 January from until the exhibit trial presented, on the record and thus defendant July 8, 1975, subject is not aggrieved could not be even if denied such speculate testimony. We are left wheth- cross-examination. remained it with the chemist or whether er agents. to the DCI was returned Although is unclear, the record court denied the
appears trial de right to cross-examine the
fendant discrepancies about the for the pur
chemist objection of a foundation for
pose questioned agents readily distinguishable 3. The DCI were This situation is ability Watson, concerning identify State v. their exhibit, they placed laboratory on the marks which where the number was still discerni- unnecessary ble; here, laboratory ap- we find it determine whether number does not pear sufficient. their identification was at all.