STATE OF SOUTH DAKOTA v. TREVOR ZEPHIER
#28771-a-MES
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
September 23, 2020
2020 S.D. 54
THE HONORABLE BRUCE V. ANDERSON, Judge
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, CHARLES MIX COUNTY, SOUTH DAKOTA; CONSIDERED ON BRIEFS NOVEMBER 4, 2019
JASON R. RAVNSBORG, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
BRADLEY D. KERNER, Armour, South Dakota, KEITH GOEHRING, Parkston, South Dakota, Attorneys for defendant and appellant.
[¶1.] Trevor Zephier appeals his convictions for first-degree burglary and grand theft, arguing the circuit court erred when it denied his motion to suppress evidence that was returned to the owner before trial. Zephier also alleges the court abused its discretion when it denied his motion for expert fingerprint testing. We affirm.
Background
[¶2.] At approximately 7:00 a.m. on December 9, 2016, Yankton Sioux Tribal Police received a call of shots fired at Shawn Patterson‘s residence in rural Lake Andes. Lieutenant Willard Bruguier, Jr., responded to the call and learned from Patterson that two shots were fired from a dark-colored vehicle in his driveway. The vehicle drove off after the shooting.
[¶3.] Lieutenant Bruguier patrolled the area and saw a maroon two-door car matching Patterson‘s description. He approached the vehicle, and Zephier got out of the car through the driver‘s door to speak with Bruguier who advised that he was investigating a report of shots fired. Zephier responded by stating there were no guns in his car. Lieutenant Bruguier did notice that there were other occupants in Zephier‘s vehicle—a female in the passenger seat and a man later identified as Daniel Cranmer was in the back seat. Bruguier noticed that Cranmer appeared nervous and “fidgety.”
[¶4.] Zephier was subject to Yankton Sioux Tribal Court supervision conditions that authorized random warrantless searches and seizures, and Lieutenant Bruguier elected to detain him. As Bruguier was administering a preliminary breathalyzer test (PBT) to Zephier, Cranmer moved to the driver‘s seat and drove off. Another tribal officer arrived in time to lend pursuit, and a high-speed chase ensued. Cranmer soon lost control of Zephier‘s vehicle, which left the road and rolled before coming to rest on its roof in a ditch.
[¶5.] Cranmer fled the scene and was later apprehended at Patterson‘s residence. Tribal officers looked inside the vehicle and saw several guns in the back seat. Since the accident occurred on land subject to state—not tribal—jurisdiction, they contacted the Charles Mix County Sheriff‘s Office.1 Chief Deputy Derik Rolston and another deputy arrived at the scene. They recovered nine guns from the back seat of Zephier‘s car and an additional seven guns from the trunk. Chief Deputy Rolston photographed the guns and transported them to the sheriff‘s office, where each gun was inspected and inventoried. Additional photographs of each gun‘s model and serial number were taken at the sheriff‘s office.
[¶6.] Suspecting the guns could belong to Joe Soulek based on an unrelated 2010 reported gun theft, Chief Deputy Rolston contacted Soulek, who came to the sheriff‘s office. Soulek identified the guns as his,
[¶7.] Not long after he was apprehended, Cranmer confessed to tribal officers that he and Zephier had stolen the guns from Soulek‘s house. Cranmer explained that he had previously worked for Soulek and knew he kept several guns in his house. According to Cranmer, he and Zephier drove to Soulek‘s house in Zephier‘s car, and Zephier entered the residence. While Cranmer acted as the lookout, he claimed Zephier removed several armfuls of guns from the house and loaded them into his car. Cranmer advised that their plan was to trade the guns for drugs and that Zephier had already traded two stolen pistols3 for drugs and cash prior to being apprehended.
[¶8.] Zephier also gave a statement to tribal officers. In it, he explained that he had no knowledge that there were guns in his car when Lieutenant Bruguier detained him.
[¶9.] Based on Cranmer‘s statement, Chief Deputy Rolston obtained a warrant for Zephier‘s arrest, and the State charged him with first-degree burglary and grand theft. See
[¶10.] Zephier moved for suppression of the guns, asserting that the State would be unable to establish a proper chain of custody based on its decision to immediately return the guns to Soulek.4 See
[¶11.] While acknowledging concern about law enforcement‘s noncompliance with statutory standards for preserving evidence, the circuit court denied Zephier‘s motions. Applying the materiality test from our decision in State v. Lyerla, 424 N.W.2d 908 (S.D. 1988), the court reasoned that “an objective officer would not have known at the time of returning the guns that they contained some exculpatory information.” The court recognized that the lack of fingerprint evidence had some potential exculpatory value, but it would not necessarily exonerate Zephier if, for instance, he had worn gloves when he handled the guns.
[¶12.] The circuit court made the same determinations in its subsequent findings of fact and conclusions of law and further found that, at a minimum, Zephier constructively possessed the guns when they were in his vehicle. The court reasoned
[¶13.] As it related to Zephier‘s request to test the previously-returned firearms, the court denied relief, essentially concluding that it was “too late” for testing because the guns had been handled by deputies and then released to Soulek.5 However, the court told the parties that Zephier‘s defense counsel would be given “great leeway” at trial to discuss the failure to preserve the evidence and its potentially exculpatory value.
[¶14.] Zephier‘s case was tried to a jury on December 4 and 5, 2017. During trial, Zephier renewed his motion to suppress the guns upon learning, apparently for the first time, that Chief Deputy Rolston had received permission from the state‘s attorney to release the guns to Soulek. The circuit court again denied Zephier‘s request, finding that the state‘s attorney‘s involvement in the decision to return the guns did not change its previous analysis.
[¶15.] The State called Cranmer as a witness.6 Consistent with his previous statement, Cranmer told the jury that he and Zephier had formulated a plan months before the burglary to steal guns from Soulek and trade them for drugs. Cranmer claimed that he never entered Soulek‘s home on the morning of the burglary, but instead stayed in the car while Zephier made several trips into Soulek‘s home to remove the guns, which Cranmer then helped load into the car. Soulek also testified, explaining that the stolen guns had an estimated value of $15,950.
[¶16.] Zephier testified in his defense and told jurors that he had loaned his car to Cranmer in the early morning hours of December 9 in exchange for gas money, but Cranmer kept the car much longer than expected, picking Zephier up between 7:30 and 8:00 a.m. Zephier told jurors that he had no knowledge the stolen guns were in his vehicle when he spoke with Lieutenant Bruguier later that morning and only became aware of the guns while in tribal custody following his arrest. Zephier also explained that the back seats of his car fold down to allow access to the trunk, suggesting all the guns could have been kept in the trunk prior to the rollover accident.
[¶17.] The circuit court gave the jury a specific instruction regarding law enforcement‘s failure to comply with statutory standards regarding evidence preservation. The instruction stated that it was for the jury‘s “sole and exclusive determination whether returning the property to Joe Soulek . . . bears upon the innocence or guilt of the defendant.” Zephier did not object to this instruction. Regarding law enforcement‘s failure to notify Zephier before returning the guns, the prosecutor told the jury, “[W]hat you need to decide is okay, they didn‘t follow the procedure. But does that make him innocent? No, he‘s still guilty. He did the crime.” For his part, Zephier‘s defense counsel argued that there was “a lot of reasonable doubt” whether Zephier committed this crime.
[¶19.] Zephier raises several issues on appeal, which we consolidate and restate as follows:
- Whether the circuit court erred when it denied Zephier‘s motion to suppress the gun evidence.
- Whether the circuit court abused its discretion when it denied Zephier‘s motion for expert analysis of fingerprint evidence on the guns.
Analysis
Due Process and Preserving Evidence
[¶20.] The Due Process Clause of the Fourteenth Amendment imposes upon states the requirement to ensure that “criminal prosecutions . . . comport with prevailing notions of fundamental fairness.”8 California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413 (1984). Implicit in this standard is the necessity that “criminal defendants be afforded a meaningful opportunity to present a complete defense.” Id. The resulting body of decisional law from the United States Supreme Court and this Court exist under a topical heading that “might loosely be called the area of constitutionally guaranteed access to evidence.” Id. (quoting United States v. Valenzuela–Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446, 73 L. Ed. 2d 1193 (1982)); see also State v. Jackson, 2020 S.D. 53, ¶ 26, ___ N.W.2d ___.
[¶21.] Within the broad category of these decisions, two distinct lines of cases have developed—cases in which the exculpatory value of the undisclosed evidence is known and cases where it is not. The former is illustrated by the prototypical violation of the rule set out in Brady v. Maryland where a prosecutor does not share information or evidence that is, nevertheless, identifiable and intact and is “either material to the guilt of the defendant or relevant to the punishment to be imposed.” Trombetta, 467 U.S. at 485, 104 S. Ct. at 2532 (citing Brady, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963)); see also United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342 (1976) (holding that prosecutors must disclose exculpatory evidence that would raise a reasonable doubt about the defendant‘s guilt, even in the absence of a specific request). Whether the prosecution‘s suppression of this type of evidence will lead to a due process violation that results in a new trial turns on the materiality of the suppressed evidence—not the good faith or bad faith of the prosecutor. See State v. Birdshead, 2016 S.D. 87, ¶ 18, 888 N.W.2d 209, 215 (citation omitted) (holding Brady evidence “is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.‘“); Thompson v. Weber, 2013 S.D. 87, 841 N.W.2d 3 (applying Brady to a child rape victim‘s undisclosed counseling records).
[¶22.] However, materiality and good faith are viewed differently in the second
Whenever potentially exculpatory evidence is permanently lost, the courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing the State‘s most probative evidence.
Lyerla, 424 N.W.2d at 910-11 (quoting Trombetta, 467 U.S. at 486-87, 104 S. Ct. at 2533).
[¶23.] In Trombetta, the United States Supreme Court held that law enforcement officers did not violate a defendant‘s due process right to access evidence by failing to preserve breath samples in prosecutions for driving while under the influence. 467 U.S. at 491, 104 S. Ct. at 2535. As part of its analysis, the Supreme Court created a test for determining the materiality of evidence that no longer exists:
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect‘s defense. To meet this standard of constitutional materiality . . . evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Id. at 488-89, 104 S. Ct. at 2534 (internal citation omitted).
[¶24.] However, Trombetta‘s materiality test will not resolve all due process challenges in cases of lost or destroyed evidence. See Jackson, 2020 S.D. 53, ¶¶ 28-30, ___ N.W.2d ___. In some instances, this evidence cannot satisfy the materiality test, and the most that could be said is that it “could have been subjected to tests, the results of which might have exonerated the defendant.” Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988). For these cases involving only “potentially useful” lost or destroyed evidence, the Supreme Court contrasted the rule of Brady that “makes the good or bad faith of the State irrelevant” and held that a defendant must show that law enforcement officers acted in bad faith to establish a due process violation:
[R]equiring a defendant to show bad faith on the part of the police both limits the extent of the police‘s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.
[¶25.] In South Dakota, our Legislature has enacted statutory standards governing law enforcement officers’ obligation to preserve evidence. See
[¶26.] The provisions of
[P]roperty . . . seized or confiscated by law enforcement personnel, ostensibly for use as evidence in a criminal prosecution shall be preserved, maintained, or stored at the expense of the county where the criminal offense occurred. If the property . . . is owned by a victim of the crime being investigated, the property shall be photographed by the appropriate law enforcement personnel and returned to the victim of the crime within thirty days of completion of forensic analysis unless the prosecuting attorney deems it essential to the prosecution of the case to retain the evidence. The photographs shall accurately and correctly represent the property and are admissible evidence . . . in any resulting criminal proceeding.
[¶27.] However, before releasing evidence to its owner,
Before any property is returned to the owner pursuant to § 23A-37-14, the law enforcement personnel in possession of the property shall notify the defendant that the property will be returned to the owner. Upon a motion made by the defendant and upon good cause shown that the property contains exculpatory evidence of the defendant‘s innocence, the court may order the law enforcement personnel in possession of the property not to release it to the owner.
[¶28.] Here, the State acknowledges law enforcement officers and the prosecutor did not comply with these statutory standards.9 After officers sought guidance concerning the disposition of the recovered firearms, the local prosecutor incorrectly advised them to release the guns to Soulek without notice to Zephier. In this way, the State failed to preserve Zephier‘s right to examine the guns for the presence or absence of forensic evidence. Although the guns were not, themselves, destroyed or lost, the evidence Zephier sought—the absence of his fingerprints—was likely compromised to such an extent it was effectively lost. In fact, Zephier acknowledges on appeal that the decision to return the guns to Soulek “may have [caused] some changes in the fingerprints.” The circuit court perceived the argument in the same way and found that Zephier‘s pretrial argument posited that
“exculpatory evidence was lost” by returning the firearms to Soulek. The court‘s other findings further detail the extent to which law enforcement officers necessarily handled the guns in their effort to inspect and photograph them. Under these unique circumstances, we will analyze the claim as one involving lost or destroyed evidence.
[¶30.] Applying these cases, we conclude that Zephier cannot prevail. Initially, we believe that the potential lack-of-fingerprint evidence was not material because the firearms did not possess apparent exculpatory value. The guns were found in Zephier‘s car, which generally matched the description of the vehicle connected to a shooting outside of a nearby residence reported a short while earlier. Zephier was in the driver‘s seat of the parked car and in apparent control of it before he got out to speak with Lieutenant Bruguier. Cranmer‘s subsequent flight and the ensuing police chase suggested a concerted effort to conceal evidence of the stolen weapons in Zephier‘s car.10 Under these circumstances, the guns did not possess apparent exculpatory value.11
[¶31.] At most, the guns were, in the words of Youngblood, “potentially useful.” However, Zephier‘s due process argument is unsustainable because he has not established that the State or its law enforcement officers acted in bad faith. The Charles Mix County deputies did not release the guns unilaterally or in an effort to frustrate Zephier‘s defense. Instead, they sought guidance from the local prosecutor, and though the deputies and the prosecutor overlooked their statutory obligations to preserve evidence, the record contains no information to suggest bad faith.
[¶32.] Zephier‘s argument to the contrary simply focuses on the State‘s violation of the procedures outlined in
[¶33.] Finally, the circuit court undertook appropriate remedial efforts to address the State‘s violation of
It is the law of this state that when property is seized by law enforcement which constitutes evidence of a crime, law enforcement must safely keep such property as evidence as long as it is required for trial and must not dispose of the same without an order of the court. It is for your sole and exclusive determination whether returning the property to Joe Soulek without a court order, and the weight to be given such fact, bears upon the innocence or guilt of the defendant.
[¶34.] In the end, the jury determined the credibility of Cranmer and Zephier and assigned what it thought was the proper weight to law enforcement‘s failure to preserve alleged exculpatory evidence. See State v. Ware, 2020 S.D. 20, ¶ 12, 942 N.W.2d 269, 272-73 (quoting State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342) (“[T]he Court ‘does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence on appeal.‘“). We conclude that the circuit court did not err when it denied Zephier‘s motions to suppress the gun evidence.
Zephier‘s Motion for Expert Fingerprint Testing
[¶35.] We review “[a] trial court‘s decision regarding appointment of an expert” for an abuse of discretion. State v. Buchholz, 1999 S.D. 110, ¶ 30, 598 N.W.2d 899, 905 (quoting State v. Red Star, 467 N.W.2d 769, 771 (S.D. 1991)). “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. Delehoy, 2019 S.D. 30, ¶ 22, 929 N.W.2d 103, 109 (quoting Thurman v. CUNA Mut. Ins. Soc‘y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616).
[¶36.] “Trial courts should scrutinize a defense request for an expert to [e]nsure that an indigent defendant may procure any reasonable defense, and, when in doubt, lean toward the appointment of such an expert.” Danielson, 2012 S.D. 36, ¶ 23, 814 N.W.2d at 409 (quoting State v. Stuck, 434 N.W.2d 43, 51 (S.D. 1988)). “However, if the request is frivolous, unreasonable, unnecessary for an adequate defense, or without underlying factual support, the appointment need not be made.” Id. (quoting In re E.L. & R.L., 2005 S.D. 124, ¶ 22, 707 N.W.2d 841, 848).
[¶37.] Here, the circuit court acted within its discretion when it denied Zephier‘s motion for forensic testing because he did not demonstrate the testing was necessary for an adequate defense, and the request lacked factual support. Under the circumstances, the court correctly concluded that any fingerprint evidence, or the lack of it, that existed prior to Zephier‘s arrest could have been compromised when law enforcement officers and Soulek handled the guns after they were recovered, making fingerprint analysis inconclusive. Zephier himself thought it was possible that the fingerprints had been altered, and the court‘s decision to deny a fingerprint expert could be affirmed on that basis alone.
[¶38.] The request was also unconnected to factual support for the premise that there was a reasonable likelihood that an expert could recover identifiable fingerprints. More to the point, Zephier submitted no evidence to support the idea that the inability to recover his fingerprints would be meaningful given the fact that it
[¶39.] Finally, even if the circuit court abused its discretion by denying Zephier‘s request for fingerprint testing, we can discern no prejudice. There was no expert fingerprint testimony at the trial, so the principal point Zephier wanted to make—that his fingerprints were not found on the guns—was essentially conceded by the State. The absence of any fingerprint evidence allowed Zephier the strategic opportunity to emphasize the State‘s failure to follow well-established rules for the preservation of evidence, suggest sloppy police work, and argue that fingerprint analysis would have confirmed Zephier‘s denial of responsibility. The court‘s instruction also supported Zephier‘s argument that the State had violated evidence preservation standards and allowed the jurors to consider the impact of the State‘s statutory violations when determining the question of guilt.
Conclusion
[¶40.] The circuit court did not err when it denied Zephier‘s motion to exclude evidence associated with the stolen guns. Although law enforcement officers did not comply with statutory standards for preserving seized evidence when they prematurely returned the guns to Soulek, Zephier has not demonstrated that the evidence was material or that officers acted in bad faith. In addition, the court acted within its discretion when it denied Zephier‘s request for fingerprint testing. The request lacked sufficient factual support, and the analysis was unnecessary to his defense. We affirm.
[¶41.] GILBERTSON, Chief Justice, and KERN, JENSEN, and DEVANEY, Justices, concur.