STATE OF SOUTH DAKOTA v. SHAWN MICHAEL SHELTON
#29263-a-JMK
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2021 S.D. 22, OPINION FILED 04/14/21
2021 S.D. 22
THE HONORABLE CHERYLE W. GERING, Judge
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, YANKTON COUNTY, SOUTH DAKOTA. CONSIDERED ON BRIEFS JANUARY 11, 2021.
LUCI YOUNGBERG, Yankton County Public Defender, Yankton, South Dakota, Attorneys for defendant and appellant.
[¶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
[¶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,
[¶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.” Dеtective 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
[¶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
[¶8.] A two-day jury trial began on December 12, 2019. Befоre 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-
[¶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 trаnscript 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,
[¶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 sentenсes 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:
- Whether the circuit court abused its discretion by refusing to admit the written CI agreement and precluding demonstrative exhibits.
- Whether the circuit court abused its discretion in denying Shelton‘s motion for new trial.
- 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 mаde by the circuit court during his jury trial. First, Shelton sought admission of the written CI agreement
[¶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. Akers, 2015 S.D. 80, ¶ 60, 871 N.W.2d 477, 496
[¶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.”
[¶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
[¶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 disclosurе 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 thе 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
[¶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 сounsel 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
[¶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 lоng 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
[¶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 counsеl needed to show that the aid clearly depicted the container the CI perceived and was describing. See
[¶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 shоw 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
[¶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.
[¶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 cаse, Shelton does not dispute that the State laid the proper foundation for admission of the
[¶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
[¶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 рroperly 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.
[¶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 beliеved 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
[¶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 positiоn 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
[¶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.
[¶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.
[¶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.
KERN
Justice
Notes
“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 thе 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).
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, hоwever, 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 causеd 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.