STATE оf South Dakota, Plaintiff and Appellee, v. Kip SONDREAL, Defendant and Appellant.
No. 16903.
Supreme Court of South Dakota.
Decided July 25, 1990.
459 N.W.2d 435
Considered on Briefs May 23, 1990.
Though Broker attempts to fit its analysis within a res judicata theory, that is incorrect because at the time of the second summary judgment, Insurer‘s summary judgment order was not final and unreversed. The correct analysis is found in the theory of law of the case. We explained this doctrine in Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 260 (S.D.1976). The “law of the case” doctrine is intended to afford a measure of finality to litigated issues. It is a rule of practice and procedure which for policy reasons provides that once an issue is litigated and decided it should remain settled for all subsequent stages of the litigation. See, e.g., Topps-Toeller, Inc. v. City of Lansing, 1973, 47 Mich.App. 720, 209 N.W.2d 843.... It is the weaker corollary of the doctrines of res judicata, collateral estoppel and stare decisis and is intended to prove some degree of certainty where those doctrines could not yet apply. Topps-Toeller, supra. Its scope of application is reflected in the statement of the general rule:
“In the earlier decisions of this court it was well settled that a question decided on a former appeal became the law of the case, not to be questioned in a second or any subsequent appeal involving any branch of the case.” Gamble v. Keyes, 1925, 49 S.D. 39, 43, 206 N.W. 477, 478.
See also, American State Bank v. List-Mayer, 350 N.W.2d 44, 46 (S.D.1984).
Here, all parties litigated whether Insured had cancelled the policy through its attorney-in-fact, Financier. Insured had notice of the hearing on Insurer‘s summary judgment motion and was present with counsel. The trial court ruled that Insured had cancelled the policy. A policy could not have been cancelled without first being in effect. Insured allowed this order to be entered without any objection. This order by the trial court precluded it from then, two wеeks later, ruling that no policy existed because of mutual mistake. Therefore, under the doctrine of law of the case, the trial court erred in granting summary judgment in favor of Insured. Shaffer, supra; American State Bank, supra.
Therefore, we affirm the trial court‘s order granting summary judgment in favor of Insurer, but we reverse the trial court‘s order granting summary judgment in favor of Insured, and remand with instructions to enter an order in accord with this opinion.
All the Justices concur.
SABERS, J., deeming himself disqualified did not participate in this decision.
Brian W. Jones of Heidepriem, Widmayer, Zell & Jones, Miller (Scott N. Heidepriem of Heidepriem, Widmayer, Zell & Jones, Miller, on the brief), for defendant and appellant.
MILLER, Justice.
In this decision we affirm convictions of distribution of a controlled substance and conspiracy to distribute a contrоlled substance, holding that (1) cocaine is, as a matter of law, a controlled substance; (2) conflicts in State‘s evidence do not warrant reversal; (3) there was adequate corroboration of an accomplice‘s testimony; and (4) subsequent return of a controlled substance to the original deliverer may be a distribution thereof under our statute.
FACTS
Kip Sondreal was indicted on one count of conspiracy to distribute a controlled substance in violation of
Brian Hanson (Hanson), an admitted drug user and dealer, had been directly involved in the conspiracy and distributiоn of cocaine which led up to the arrest and conviction of Sondreal. Hanson agreed to cooperate with law enforcement, testify at trial, and plead guilty to conspiracy to distribute cocaine, pursuant to an agreement to grant him use immunity from prosecution for all other drug related crimes.
Hanson had been involved in dealing drugs with Mаrc Hanson (no relation). They worked as “partners.” Also involved in this drug ring was Mark Small, who had a cocaine supplier in Minnesota. In February or March, 1989, Hanson and Sondreal used cocaine together for the first time. Hanson testified that thereafter they met almost every other day to use cocaine.
In March, 1989, Sondreal and Hanson discussed the possibility of Sondreal financing a cocaine deal.3 On March 24, 1989, the Hansons and Small drove to Minnesota to purchase cocaine from Ed Swart. They had previously accumulated $5600 for the drug transaction. Hanson invested $200, Eric Fodness, a friend, $900, and Sondreal, $4500. Hanson testified that during this time “dealing drugs” was his only means of income; it was his “life.” Although they paid the entire $5600 to Swart, they were unаble to obtain the amount of cocaine desired. Swart agreed to later send or supply the rest of the cocaine. Although their intentions were to purchase four ounces of cocaine on this trip, they acquired only one ounce. Consequently, they were unable to give Sondreal the entire amount due for his $4500 investment. They did provide him with eight grams, but did nоt tell him they were unable to obtain the rest. Instead, Hanson informed Sondreal that he had “stashed” the remainder.
In early April, the Hansons went to Sioux Falls and picked up a second ounce of cocaine which Swart had sent by bus. Hanson gave Sondreal a half ounce (14 grams) of this amount. Two days later, Sondreal returned ten grams to Hanson, complaining of thе quality.4 On or about April 22, 1989, Hansons returned to Minnesota and obtained a third ounce of cocaine from Swart.
About this time Hanson became employed in Alpena, South Dakota. Sondreal began calling him at work demanding the return of his money. Early one morning, he entered Hanson‘s house, unannounced, and woke him up asking about the money. Prior to leaving he poked a hole in one of Hanson‘s stereo speakers.
On May 4, 1989, Hanson was called to the Huron Police Station where he made a general admission of his involvement in purchasing and selling drugs. He also re-
The following day Sondreal called Hanson at his place of employment and told him that he had better change his story. Sondreal also told Hanson in this phone conversation that, “[w]hen drug deals go bad, people die....”
At trial, Sondreal testified that the $4500 was a loan to Hanson for converting his van. He admitted that he did not take anything as security or require a promissory note to be signed by Hanson. He testified that he had no idea Hanson would buy drugs with the money.
DECISION
WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION.
Sondreal has raised four specific arguments in support of his issue that there was insufficient evidence to sustain the conviction. He has asserted that (1) there was insufficient evidence to establish the identity of the substance allegedly distributed; (2) the testimony of State‘s witnesses was so contradictory as to not lead to any conclusion; (3) there wаs no corroboration of the accomplice‘s testimony on the conspiracy charge; and (4) the charge of distribution was not supported by the evidence.
Generally, in determining the sufficiency of the evidence on appeal, the question presented is “whether there is evidence in the record, which, if believed by the jury, is sufficient to sustain a finding оf guilt beyond a reasonable doubt.... In making this determination, the Court will accept that evidence, and the most favorable inferences fairly drawn therefrom, which will support the verdict.” State v. Miller, 429 N.W.2d 26, 38 (S.D.1988) (citations omitted). See also State v. Jenner, 451 N.W.2d 710 (S.D.1990).
A. IDENTITY OF SUBSTANCE
Sondreal contends that evidence of the identity of the substance alleged to have been distributed was insufficient. He is not contesting that the substance introduced by State was, in fact, cocaine. (State‘s expert witness testified to that.) He argues that cocaine is not a substance listed in either Schedule I, see
The case of State v. Habbena, 372 N.W.2d 450 (S.D.1985), is dispositive of this issue. Therein we clearly stated, “[c]ocaine is a Schedule II substance under
B. CONFLICTS IN STATE‘S EVIDENCE
Next, Sondreal contends that the testimony of State‘s witnesses was so contradictory that no reasonable conclusion could be drawn therefrom.
Although there were some inconsistencies in the testimony of certain witnesses, the significance is minor. These inconsistencies were heard by and argued to the jury. The jury remains the exclusive judge where conflicting testimony arises. State v. Herman, 253 N.W.2d 454 (S.D.1977); State v. Shank, 88 S.D. 645, 226 N.W.2d 384 (1975).
C. CORROBORATION OF ACCOMPLICE
With regard to the conspiracy charge, Sondreal contends there was no
“Accomplice testimony need not be corroborated by evidence sufficient to sustain a conviction. The mаndate of [
SDCL 23A-22-8 ] is satisfied where the corroborative evidence in some substantial degree tends to affirm the truth of the testimony of the accomplice and establish the guilt of the accused. There is no requirement that every material fact testified to by the accomplice be confirmed by corroborative evidence. The accused himself can provide the necessary corroboration. Finally, whether the corroboration is sufficient is a question for the jury.”
444 N.W.2d at 382 (citing State v. Reutter, 374 N.W.2d 617, 626 (S.D.1985)).
State asserts, and we agree, that the following evidence is corroborative of Hanson‘s testimony:
- The testimony of Captain Rand and Division of Criminal Investigation Agent Doug Lake relating the telephone conversation between Hanson and Sondreal. The officers stated that Hanson called Sondreal, they obviously knew each other, and that they were dealing with money (as evidenced by their subsequent meeting at a specific restaurant).
- Sondreal took the $1000 from Hanson, evidencing some type of debt owed by Hanson to Sondreal.
- Phone records were introduced at trial and showed a pattern of arranging drug deals. Phone bills of Mark Small coincided with trips to the home of Ed Swart in Plymouth, Minnesota.
- Sondreal‘s phone bills corroborated Hanson‘s assertion that he called him at his place of work in Alpena.
- Sondreal himself admitted that he gave a large amount of cash to Hanson without requiring any type of security.
- Sondreal admitted to felony use of cocaine.
We believe this evidеnce corroborated Hanson‘s testimony. The sum of this evidence was sufficient to prove Sondreal‘s guilt beyond a reasonable doubt. That was clearly within the prerogative of the jury. Phyle, supra.
D. SUFFICIENCY OF EVIDENCE OF DISTRIBUTION
Finally, Sondreal contends that the charge of distribution under
The jury was instructed by the trial court as to the statutory meaning of the words “distribute,” “deliver” and “delivery:”
The word “distribute” as used in these instructions means to deliver a controlled drug or substance. “Deliver” or “delivery” means the actual or constructive transfer of a controlled drug or substance whether or not there exists any agency relationship.
The authoritative source of this instruction is
Therefore, under our statute, the transfer of a controlled substance, cocaine, by Sondreal to Hanson constituted a distribution. The jury properly found the offense was committed.
E. SUPPLEMENTAL ISSUE
Lastly, on May 21, 1990, two days before the hearing by this Court, Sondreal filed a supplemental brief in which he raised a new issue; namely, that the testimony and State‘s arguments and references to Hanson‘s plea agreement were prosecutorial misconduct amounting to reversible error under our holding in State v. Goodroad, 455 N.W.2d 591 (S.D.1990).
The authorization to submit supplemental authority is found at
Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to havе been included in his brief in chief, he shall serve a copy thereof upon opposing counsel and file fifteen copies of the supplemental brief, restricted to such new matter and otherwise in conformity with this chapter, up to the time the case is called for hearing, or by leave of Court thereafter.
We observe that rather than submitting new authоrity, Sondreal has in fact presented a new issue which was not previously briefed by him or State. Therefore, the supplemental brief was not authorized under the statute. We hasten to point out, however, that there are a number of distinctions between this case and Goodroad, supra, (e.g. failure to preserve issues for appeal). State v. Dornbusch, 384 N.W.2d 682 (S.D.1986); State v. Lachowitzer, 314 N.W.2d 307 (S.D.1982).
Affirmed.
WUEST, C.J., and MORGAN and HENDERSON, JJ., concur.
SABERS, J., concurs in part and dissents in part.
SABERS, Justice (concurring in part and dissenting in part).
I concur in all respects except as to Issue D., SUFFICIENCY OF EVIDENCE OF DISTRIBUTION. I have no trouble affirming the conviction of the defendant for conspiracy to distribute a controlled substance, but the facts in this case do not support a conviction on the charge of distribution of a controlled substance under
The facts clearly show that rather than accepting and distributing the controlled substance, Sondreal rejectеd the controlled substance because of poor quality. This cannot constitute “distribution.” In fact, rejection is the antithesis of acceptance and distribution. The defect in the majority‘s thinking is clear when one considers