State v. Roth

plaintiff’s the time of the stands occur at without real would corroboration. He can- provide the executor failed to list the life not it what he have death said to part weighing the estate. person presence estate as a third out of the of his matter, proof daughters. equities daughters The fact that his ap- conduct is not suffi- inequitable plaintiff’s parently spouse, disliked his justify allowing ciently strong daughters failed to collect the first rent due enriched, unjustly especial- daughters to be can be accounted for on other reasonable training in light Diane Bradford’s ly in Even though grantor’s theories. health be- tax law. business and poor, came it undisputed seems that he was fully able counsel with and understand whole, Having examined the record as a attorney fact, what his told him. Thus the imposition court’s of a we affirm the trial is, if it that his need for funds increased at from constructive trust on the income subsequent persuasive time is no proof of property. parol agreement. earlier MORGAN, JJ., concur. ZASTROW The convincing” “clear and evidence re- quirement extremely important is J., J., WOLLMAN, PORTER, C. dis- rights of all owners of real estate who sent. depend upon their recorded deeds as suffi- PORTER, (dissenting). Justice proof cient of title. Enforcement of the “ ingraft are the courts to reluctant requirement ‘So in my would view mandate legal title by parol on the to real trust in this reversal case. is perhaps . . . there no

estate better established doctrine than the one I am authorized to state that WOLL- requires high degree proof which J., MAN, joins C. in this dissent. by parol evi- to establish trust order ” Knock, Knock v. 80 S.D. dence.’ (1963). If we dilute 120 N.W.2d convincing”

the “clear and evidence re- firmly embedded in our case

quirement so

law, a dubiously equitable for the sake of

result, open we the door to future cases asked, here, will

where our courts be as realty grantor a trust on to rescue a impose STATE of Plaintiff belatedly decides to rescind an earlier who Respondent, voluntary conveyance realty. absolute that his plaintiff In this case intended deeds ROTH, pass fee title. His motivation came not Appellant. Mark Defendant and pressure daughters his but in- from No. 12236. his desire to avoid certain inher- stead from Supreme Court of South Dakota. expense. taxes and other He was itance attorney some time fully advised Sept. daughters. after he had last seen his asks that his deeds Grantor effect he

reformed because has now decided that prefer to retain an interest in the notwithstanding inheritance

land tax. parol whether the

The issue is evidence by grantor

offered is “clear and convinc- well

ing.” This term is defined in Crom- Hosbrook,

well v. 134 N.W.2d S.D. (1965). Essentially, grantor’s testimony Meierhenry

conversations between Mr. Tobias, Attorney Marc an Assistant General who was in Vermillion to assist the local law in connection officers with their sur veillance, agreement was reached where by charges against Powers would be dis cooperation missed in return for his giv in ing certain information regarding the cir cumstances that had led to his arrest and willingness to testify against appellant. Apparently agreement, as a result of this signature an affidavit for Powers’ was pre pared by Meierhenry’s Mr. Tobias in Mr. Tobias, Gen., Atty. Asst. Marc Weber night. approximately office late that At Pierre, Wil- plaintiff respondent; for 23, 1976, July agent Gromer, 4:00 a. m. on Janklow, Gen., Pierre, Atty. J. liam Tobias, Mr. appeared and Powers brief. Ulrich, Judge home of Robert C. who was Falls, Sidney Strange, B. for de- Sioux serving then magistrate as law-trained in appellant. fendant and the First Judicial Circuit. Agent Gromer placed and Powers were under oath by WOLLMAN, Chief Justice. Ulrich, Judge signed and each an affidavit charged possession Appellant support in of a search warrant.* A war with intent to distribute issued, duly rant was and at approximately marijuana with intent to dis- possession of morning agent 6:45 that Gromer executed guilty He was found on both tribute. by searching the warrant the residence oc court, a trial to the charges following cupied by appellant County, in Union South judgment of conviction. appeals from the response agent Dakota. In Gromer’s We affirm. question posses whether inwas Powers, July Michael a resi- On any substance, appellant sion of controlled Kimball, accompa- dent of replied that what the looking officers were who, Roger unknown to by nied Steffans upstairs. for was He led the officers to a Powers, working as an undercover area, pointed bedroom to a suitcase and Investi- agent for the Division of Criminal said, “It is in. there.” The suitcase was Vermillion, journeyed to South Da- gation, 25,000 determined approximately to contain kota, purpose making drug a tablets, white which, 200 of transaction. representative sample, selected as a were day, Donald evening of that same On later determined to contain amphetamine. Gromer, with the Division of special agent Agent Gromer found several bags small Investigation, met with Herb Holl- Criminal containing marijuana under a couch in the drug en- employee of the ingsworth, living larger A quantity marijua room. unit of the Division of Criminal forcement loose, na in a unpackaged condition was purpose carrying Investigation, paper found in a sack inside a closet on the possible drug out surveillance of a transac- Altogether, marijuana first floor. Early evening Vermillion. tion in weighed approximately 40.95 ounces. ar- Lindsay Bergdale and one Powers addition to controlled substances apparent drug result of an rested as a residence, appellant’s triple found beam approxi- At between them. transaction plastic scale covered dust cover was mately p. evening 8:00 m. that Powers re- Meierhenry, a Vermillion at- found a dresser drawer on the tained Mark second a result of torney, represent premises. him. As floor of the Appendix.

* See police sufficiency affidavit, attacks Appellant officer’s Powers executed which the warrant upon affidavits search the affidavit under oath in the magistrate’s He contends that the affidavits was issued. presence. He was therefore not some dis- satisfy prongs neither of test wraith, arising embodied in the magistrate’s governing sufficiency of affidavits for only visualization from the words of the search warrants established the United affidavit, but was physically present Texas, Aguilar Supreme Court States swear to the facts set forth in the affidavit. 378 U.S. S.Ct. L.Ed.2d Granted that the record does not establish States, Spinelli v. United 393 U.S. magistrate personally questioned 21 L.Ed.2d 637. S.Ct. Powers or otherwise tested his credibility, yet the fact remains that alone, Powers standing The state concedes that was more faceless, than the usual affidavit does not proba- police Powers’ establish nameless in- however, The state formant argues, ble cause. fact of whose very existence agree, depends upon we that when the two affidavits are the credibility of the police together, they read contain sufficient infor- officer’s affidavit and whose credibility and magistrate mation from which the could reliability informational can be established probable determine that cause existed to only through the circumstances detailed in possession was in believe of the officer’s affidavit. As the Wisconsin at his residence on the date Supreme Court held in case, the Rainey the affidavits executed. supra, where one who is not a paid police appears informer before the magistrate Aguilar requires showing The test a of personally and swears to the facts establish- underlying the circumstances from which it ing probable cause issuance of a can be determined that the informant warrant, search the Aguilar tests are not speaks showing whereof he knows a applicable even if the informant’s name is person that the informant is a who can be not disclosed out respect of for his fear of Supreme As the Wisconsin Court believed. possible subject retaliation the stated, prongs Aguilar has “Both of the test Although search. Rainey go above to the informant’s reliabili- case is not stated fully applicable here ty; reliability the first to his inasmuch as the informational record does not indicate that credibility, magistrate or and the second to per- his observa- State, sonally questioned reliability.” Rainey oath, tional v. 74 Powers under we 529, 246 believe that Wis.2d N.W.2d 532. the rationale of that case is applicable Judge the instant case. Ulrich We conclude that the two affida had before him one who had recently been satisfy prongs Aguilar vits both test. apprehended in apparent violation, an drug First, Aguilar Spinel- we note that both who willing was to be fully identified as a li involved unnamed informants. As we source of information concerning appel- Haron, 397, v. held in State 88 S.D. 220 transactions, drug lant’s and who was will- 829, Gerber, S.D., N.W.2d and State v. 241 ing to swear to the truth of the information 720, exacting N.W.2d a less test of infor that he give was able to concerning appel- reliability applied mant is in those cases in lant. the informant is an which identified citizen Moreover, eyewitness or victim of an offense and not Powers’ statements were paid police a informant. also v. against See State penal interests. Granted that Kissner, S.D., 252 Although N.W.2d 330. the state had apparently agreed pros- not to strictly speaking Powers did not fall within ecute him as a result of his participation in categories either of those two inasmuch as the events of the evening July 22, alleged participant he was in an immedi fact remains that Powers admitted to facts violation, ately preceding drug placed neither was him in a highly unfavorable anonymous paid he an informant. light Rather eyes of the law terms of having presented than his information morality. conventional The fact that magistrate hearsay through promised form a immunity was does not erase the 812 States, 206, Sgro v. United 287 U.S. to his credibility that attached

indicia 138, (1932). 77 L.Ed. 260 We con S.Ct. interests. against his declarations in United States was said that what clude Wright, Federal Practice and also 3 See 2075, Harris, S.Ct. 403 U.S. v. Procedure § here: applicable is L.Ed.2d Haron, supra, v. we held that a State crime, admissions like Admissions fair, reading the affidavit commonsense interests, carry their against proprietary indicated a course of con question there in at credibility indicia of own —sufficient part ques of the individual in duct on probable finding a support least tion sufficient to establish that his associa the informant That cause to search. premises sufficiently with the con tion does not a “break” promised or paid justify magistrate’s conclu tinuing to opprobri- risk and residual eliminate the probability that there was a reasonable sion conduct. criminal having admitted um property to be searched for would that the 2082, 29 at 91 S.Ct. 403 U.S. premises. on the We conclude be found (plurality opinion). at 734 L.Ed.2d reading of the affidavits in the fair Matlock, 415 U.S. States also United See to a similar result here. instant case leads L.Ed.2d 94 S.Ct. activity that criminal is The likelihood turn, then, question We singu- of a nature rather than continuing contained in Pow information whether depends upon lar in occurrence facts justify not to was so stale as ers’ affidavit We think and circumstances of each case. probable there determination fair, reading commonsense amphetamines that believe cause to presented sufficient evi- affidavits Appel residence. appellant’s be found magistrate the could con- dence from which on the affidavit challenges Powers’ lant engaged was in an appellant clude that any set forth circum that it did not ground ongoing drug series of transactions. Pow- magistrate which the could from stances revealed that he had been ers’ affidavit told alleged criminal ac whether the determine was a source from which he appellant that the time that the search continued to tivity indeed, amphetamines; could purchase argues that Appellant was issued. warrant given appellant’s telephone Powers was that Powers affidavit reveals the because number, authenticity the of which was veri- appellant, directly with spoken had never At the time of by agent fied Gromer. the residence, had appellant’s been to had never 22, transaction in Vermillion on June Pow- that Lindsay Bergdale told never been he, by Lindsay Bergdale ers was told pills appel getting Bergdale would Bergdale, approxi- would have to drive for and had had night question, in lant on the get mately one-half hour a farm to the during the month no contact amphetamines remainder of the affidavit, the infor date of the to the prior Bergdale would deliver the remainder of too in the affidavit was set forth mation drugs companion at to Powers and his probable of justify a determination stale to Beresford, the location of possession appellant was cause that judicial magistrate which the could take question. night on the notice is north and east of Vermillion. Eighth Cir- Appeals The Court affidavit Agent Gromer’s established cause probable rule of the basic cuit stated Lindsay Bergdale he followed east out of 33, Steeves, 525 F.2d 37: v. in United States Highway shortly after the Vermillion on Bergdale and Powers under the transaction between by now that It is axiomatic Bergdale cause and that at the time of his arrest probable amendment fourth $5,000, exact person warrant must had on his amount a valid search upon which paid by that he had been Powers a few the time at which must exist at be based True, issued, earlier minutes earlier. one not at some warrant is any had had since Powers passed had more than' month recognized time. That Bergdale appellant, giv- or but case of contact with leading in the ago forty years totality of the circumstances property en the for which authority to search is not preclude fact did determination that sought. 525 F.2d at 38.

probable cause existed on the date the affi- also See Maryland, Andresen v. 427 U.S. signed. were We conclude that what davits 463, 478, 96 S.Ct. 627, 49 L.Ed.2d Appeals Maryland the Court of stated in n. 9. State, v. 281 Md. Peterson 379 A.2d then, In summary, we conclude that applicable is instant case: magistrate properly found that there was words, the facts were that a other such probable cause to believe that ampheta- reasonably prudent discreet and man mines would be appellant’s found at resi- led to believe apart- would be dence on the morning of July drugs. By ment contained unlawful its nature, in illegal drugs traffic is ordinari- Appellant contends that because the ly regenerating activity, and there was state developed no factual basis to indicate indication here that the activity clear appellant’s actual intent possess the mar continual, a regularly course conduct ijuana distribute, with intent the trial a protracted followed over time. . court failing erred in to dismiss that count that narcotics easily It is true are trans- of the information. It is true that ferable, repeated but the ev- distributions greater portion of the 40.95 ounces of mari from the facts they ident showed that juana was found in a loose condition inside readily replaceable and that Peter- paper sack. extent, To that the evidence son had an available source of supply. against appellant was not as compelling as Md. at 379 A.2d at against the defendant in State v. Appeals As the Court for the Tenth Jahnz, S.D., 261 N.W.2d where we not Johnson, Circuit stated United States ed that in addition to the quantity of the 461 F.2d 285: marijuana there involved there was evi Initially, it should be noted that vital- dence of packaging for resale and the actu ity probable quanti- cause cannot be al observation of a transfer of one of the by simply counting fied the number of bags marijuana. Although only a small days between occurrence of the facts portion marijuana found in appel upon the relied and issuance of the affi- lant’s residence in prepackaged form, Together davit. with the element of we conclude that when against viewed the time we must consider the nature of the totality of circumstances surrounding ap activity. unlawful Where the affidavit pellant’s possession large of the quantity recites a mere isolated it violation would amphetamine pills, together with the dis imply proba- not be unreasonable to that covery scale, of the the trier of fact could quickly ble cause dwindles rather reasonably find appellant possessed that the However, passage the of time. where the marijuana with the intent to distribute it. properly indicating affidavit recites facts Appellant

activity protracted of a and contends that continuous the trial nature, conduct, denying court erred in passage course of the his motion sepa for rate trials on significant. of time becomes less the two charged offenses in at 287. information. provides: F.2d SDCL 23-32-8 The court justice in the interest of vein, In a similar Appeals Court of good for may, cause shown in its discre- Eighth Circuit in the stated Steeves tion, order that the different offenses or case, supra: counts set forth in the indictment or in- lapse While the of time involved is an formation be tried separately, or divided important consideration and in some into two or groups more each of said controlling, it necessarily cases be is not groups tried separately. so. are other There factors to be con- sidered, including the nature of the crimi- As Beek, we said in State Van 88 S.D. involved, activity nal and the kind of 216 N.W.2d 563: probative presence cause value the separate trials is not scale in The denial ruling appellant’s respect the court in so bedroom had with unless for reversal judicial dis- appellant’s discretion. Wise intent question abused its to distribute exercised the courts should be drugs question. cretion the accused from regard protect to in this judgment The of conviction is affirmed. prejudice. did not that the trial court We conclude PORTER, JJ., DUNN and concur. order refusing to its discretion abuse JJ., MORGAN, concur ZASTROW trial the two counts. The trials on separate specially. its concern expressed quite properly court for grant to the motion the fact that about MORGAN, (concurring specially). Justice duplicate to simply trials separate opinion I concur that counts when the two different the trial for prongs Aguilar test were met would be the same. on both counts evidence reading both affidavits. I therefore see no he would argues that because Appellant requirements reason to weaken the of that subjected himself to cross examination have really test. this case I see no difference had he taken concerning paid between a informant for cash and an testify concerning posses- his the stand informant who receives favors. marijuana, he was forced to sion of grant hearsay I will the absence of right jury waiving his choose between in an officer’s affidavit diminishes the ne- taking the stand on his own be- trial and cessity of showing that the informant was by contending responds The state half. nevertheless, past; in the the infor- reliable testify, had elected to appellant mant’s affidavit should still show both in- limited to testimony could have been direct reliability credibility formational charge only, with no cross marijuana reliability. A sign observational crank can regarding the am- by the state examination an affidavit as can an embittered enemy. need not determine We phetamines. A citizen can make an accusation in an area restrict- state would have been whether the knowledge; where he has total lack of wit- appellant, examination of ed in its cross ness the recent case where the informant testify even after appellant chose not to informing the use drugs con- right jury trial. We waiving his turned out to be sand pills. and vitamin I clude, therefore, has demon- majority paint think that with too prejudice real as result of strated no broad a brush. motion for severance. denial of his Finally, argues defendant I am authorized state that Justice by admitting into evidence the court erred joins special in this ZASTROW concurrence. Appellant in the search. beam scale found the scale was found argues that because APPENDIX the state in a drawer and because dresser Agent Gromer’s affidavit was as follows: that it had no evidence to indicate troduced Gromer, my 1. That name is Donald and packaging and weighing used in been I am a Special Agent that for the South immate the scale was irrelevant and drugs, Dakota of Investiga- Division Criminal at trial. We con to the issues raised rial tion, charged and that as such I am with trial court did not err in clude that investigating violations of the laws of the ap evidence. It admitting the scale into Dakota, State South and that I have type a that the scale was of pears that employed pertinent been so at all times weighing relatively be suitable for hereto; of substances such as the quantities small amphetamine pills during found That the' late afternoon and marijuana and fact, 1976,1 evening July, that it of 22 conduct- appellant’s residence. Given hours involving to determine the ed surveillance was for the trial court a one Michael dence, and to east of the L. E. Wilson residence; and further that the residence individual, Powers, one and other is two miles south on highway and one area; Vermillion, Dakota South quarters west, three on north subjects 3. That I observed the vehicle road; Alcester; side of the from the area arrive in of the Sommerset 9. That at PM I apartments approximately Navis, 7:30 checked with Jim July, Agent, and that a short time there- Narcotics, Bureau Iowa Sioux Volkswagen, observed a tan after I City, by telephone during the late eve- CL4530, license Dakota 1976 arrive South ning July hours of and he advised few apartments; at the that a minutes after checking with other law enforce- arrived, vehicle with one after this male ment officers in Iowa that Mark Roth occupant, the driver who had entered the ANIMAL; was known as apartment upon apart- left the arriving, 10. That the above described residence ment, 50; highway headed east on is approximately one half hour drive from stopped subject, that at this time I this Vermillion arrest, placed under and ascertained him WHEREFORE, your probable affiant has Lindsay Bergdale, that he was that I cause to believe and does believe that the person approximately took from $5000 residence, above described any at- bills; in 100 dollar buildings tached thereon quan- contains a later, approximately 4. That two hours tity 50,000 believed be approximately 14, at apartment, number the Sunset 70,000 tablets, amphetamine which are apartments was searched other [sic] pursuant controlled substance to SDCL I agents, state and was advised 39-17, and asks that a Warrant of Search plastic containing large bags, quantity issue for the above residence, described amphetamine tablets recovered and directing that property such or apartment; from the any part evidence or thereof found 5. That affiant contacted sheriff in it be seized and brought before the Chamberlain, sheriff go and had the together court with such other and fur- Powers in apartment of Michael Oa- ther relief that the court deem prop- attempt envelope coma to locate er. telephone it, with a number written on Powers, and from Gail Her- addressed Powers’ affidavit reads as follows: man, the sheriff called me back My Powers, That name is Michael telephone some 45 later and minutes ad- years that I am 22 of age, and that I he an envelope, vised that did find such Dakota; Oacoma, reside in South telephone and that a number 934-1985 2. That approximately ago, one month I printed envelope; on the front of contacted one Lindsay Bergdale, a resi- telephone 6. That number lists to said Clay County, dent of Alcester, one MARK ROTH of South Da- respect purchase quantity residence; kota, a rural 25,000 ampheta- tablets of mines, I and that the time I contacted upon checking, further have 7. That Bergdale by telephone, he farm located indicated to me this is a ascertained that he driving thought might time know of approximately 30 minutes some- Vermillion, I believe might one who have available such a known by quantity amphetamines; Roth is also the said Mark ' Animal; name of 3. approximately days That after telephone above noted which conversation residence the tele- 8. That the to Lindsay Bergdale, I is located in was Vermil- phone 934-1985 lists number lion 94, range Bergdale, and met with 5, township Big Lindsay and section County, and fur- an who Township Union individual was to Springs introduced me directly ANIMAL, as person supposedly the residence is located said ther that lived Farley Iowa; resi- of the Frank Haywarden, to the west on a farm near rest of the to make

Beersford [sic] delivery; meeting during 4. in Vermil- That this my Lindsay 10. That it is belief lion, given num- telephone I was also Bergdale going was the farm an to by Lindsay Bergdale, ber Animal as individual known ANIMAL to make town, Bergdale was advised that out purchase amphetamines; directly that I could contact Animal Bergdale 11. That a short time after telephone purchase amphetamines; to 1976,1 July, on apartment left given 5. That the number to telephone one other male individual arrested envelope me I wrote on to addressed agents. state me, awith return address from one Gail my part That the above described Herman, address, with an APO and main- arrange was to the indi- transaction my such at envelope apartment; tained to vidual who was with me make the 1976, purchase Lindsay Bergdale. I July Tuesday, 6. That on to Lindsay in Vermillion Bergdale called my happening regarding

see what purchase the above described

request to at this amphetamines;

quantity to me

time, Lindsay Bergdale indicated between thought quantity

that he 75,000 ampheta- 50,000 tablets of STATE Plaintiff of South available; would be mines Respondent, July Wednesday evening, on 7. That ap- at your called affiant Bergdale HICKEY, Joseph Defendant Roland Thursday (early AM

proximately 12:30 Appellant. ampheta- and advised Morning) No. 12460. Thursday, be available mines would at be in Vermillion July and to Dakota. Supreme Court 50,000 tablets PM, about 6:30 13, 1978. Sept. Decided purchased; be could PM on approximately 7:45 8. That at 22,1976,1 at July arrived

Wednesday, Apartments in Vermillion

Sunset [sic] purchase individual

with one other that a amphetamines;

above described arrival, Lindsay my

short time after plas- delivered two arrived and

Bergdale 5,000 (approximately) bags containing

tic indicated amphetamines, and

tablets of remaining to go get had

that he

amount, approxi- which I believed tablets; 25,000 Bergdale Lindsay

mately transaction, $5,000 entire paid leaving money all of the before

and took

the apartment; that he Bergdale indicated me have to drive for

would get hour to the rest

one half a farm to me amphetamines. He indicated got drugs, when he

that he call reststop at

and meet us the Trucktown

Case Details

Case Name: State v. Roth

Court Name: South Dakota Supreme Court

Date Published: Sep 13, 1978

Citation: 269 N.W.2d 808

Docket Number: 12236

Court Abbreviation: S.D.