State v. Zephier

#28771-a-MES
2020 S.D. 54

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

TREVOR ZEPHIER, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CHARLES MIX COUNTY, SOUTH DAKOTA

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THE HONORABLE BRUCE V. ANDERSON
Judge

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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.

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CONSIDERED ON BRIEFS
NOVEMBER 4, 2019
OPINION FILED 09/23/20
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SALTER, Justice

[¶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

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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

1. Much of Charles Mix County was originally included in the Yankton Sioux
Indian Reservation that was established by treaty in 1858. See Yankton
Sioux Tribe v. Podhradsky, 606 F.3d 994, 998 n.4 (8th Cir. 2010) (“Although
the 1858 Treaty refers to 400,000 acres, a later survey concluded the
reservation contained 430,405 acres at the time of the treaty.”). As a
consequence of an 1892 surplus land agreement between the Yankton Sioux
Tribe and the United States, along with a policy of allotting land to
individual tribal members, the area was opened to non-Indian settlement at
the end of the nineteenth century. Id. at 999-1000. Today, criminal
jurisdiction is exercised by federal, state, and tribal law enforcement agencies
according to “a complex checkerboard pattern” under which trust land held
by the United States for the benefit of the tribe or its individual members is
subject to tribal and federal jurisdiction, while non-trust land held in fee is
generally subject to state jurisdiction. See id. at 1002.

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sheriff’s office. Soulek identified the guns as his, but told the officers they were not

the guns he previously reported stolen. In fact, Soulek was not aware the guns

recovered from Zephier’s car had been stolen since he had recently been away from

home. The sheriff’s office returned the guns to Soulek that day except for the gun

suspected to have been fired at the Patterson home, which was turned over to tribal

police. At trial, Chief Deputy Rolston testified that he called the state’s attorney,

who advised him that he could return the guns to Soulek. 2

[¶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.

2. Soulek agreed to return the guns to the sheriff’s office before Zephier’s trial,
and the sheriff’s office inventoried the guns again once when they received
them back from Soulek approximately two weeks before Zephier’s trial.

3. Two commemorative .45 caliber pistols that Soulek reported as missing were
not recovered.
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[¶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 SDCL 22-32-1(3), SDCL 22-30A-1, and SDCL 22-30A-17

(classifying theft offenses). Zephier made his initial appearance and posted bond.

[¶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 SDCL 23A-37-15 (requiring “law

enforcement personnel in possession of . . . [seized] property” to notify the defendant

before returning it to the owner and retain it if ordered by the court). In the

alternative, Zephier sought forensic testing of the guns to confirm what he claimed

would be the absence of his fingerprints.

[¶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,

4. Zephier also sought an order in limine to preclude the State from offering any
evidence or testimony of the guns.
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Zephier constructively possessed the guns when they were in his vehicle. The court

reasoned that the circumstances “ma[de] it unforeseeable that the Defendant would

later claim to have never seen or touched any of the firearms.” In the court’s view,

Zephier had not established that “fingerprints or other biological material” or “the

lack of his fingerprints on the guns amounts to [favorable] evidence . . . .” Lastly,

the court concluded that there was no evidence the State acted with bad faith when

it returned the guns to Soulek.

[¶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.

5. Zephier’s counsel agreed that the ability to analyze the guns for fingerprint
evidence had likely been adversely impacted by the premature return to
Soulek.

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[¶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

6. Cranmer reached a plea agreement with the State to plead guilty to the
grand theft charge in exchange for the dismissal of the first-degree burglary
charge.
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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.

[¶18.] The jury convicted Zephier of first-degree burglary and grand theft,

and the circuit court sentenced him to 25 years in the penitentiary with 15 years

suspended for the burglary conviction and 10 years in the penitentiary with 5 years

suspended for the grand theft conviction. 7 The court ordered Zephier’s sentences to

run concurrent with credit for time served.

[¶19.] Zephier raises several issues on appeal, which we consolidate and

restate as follows:

1. Whether the circuit court erred when it denied Zephier’s
motion to suppress the gun evidence.

2. Whether the circuit court abused its discretion when it
denied Zephier’s motion for expert analysis of fingerprint
evidence on the guns.

7. Zephier’s sentencing took place close to ten months after trial because he
failed to appear for several sentencing dates.
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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.

8. We review the circuit court’s “denial of a motion to suppress based on [an]
alleged violation of a constitutionally protected right . . . de novo.” State v.
Willingham, 2019 S.D. 55, ¶ 21, 933 N.W.2d 619, 625 (quoting State v. Rolfe,
2018 S.D. 86, ¶ 10, 921 N.W.2d 706, 709).

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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 type of access-to-evidence cases. Included in this grouping are cases where

the exculpatory value of the undisclosed evidence is unknown because it has been

destroyed, or lost, or compromised in some way. As a consequence, courts seeking

to assess the materiality of the lost evidence face a practical complication:

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.

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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:

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[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.

Id. at 58.

[¶25.] In South Dakota, our Legislature has enacted statutory standards

governing law enforcement officers’ obligation to preserve evidence. See SDCL 23A-

37-14 and SDCL 23A-37-15. In this appeal, the parties’ arguments suggest, and we

agree, that these statutes simply reflect the requirements of due process. Zephier

has not, in other words, argued that state law “impos[es] on the police an

undifferentiated and absolute duty to retain and to preserve all material that might

be of conceivable evidentiary significance in a particular prosecution.” Youngblood,

488 U.S. at 58, 109 S. Ct. at 337.

[¶26.] The provisions of SDCL 23A-37-14 state in relevant part that:

[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, SDCL 23A-37-15

requires law enforcement officers to notify the defendant:

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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

9. Throughout the record, the parties and the circuit court have described the
State’s noncompliance as a failure to obtain a court order allowing the return
of the property. However, as it relates to statutory compliance, the State may
return seized property no longer deemed essential to the prosecution of the
case without a court order under the provisions of SDCL 23A-37-15, but it
cannot do so without providing notice to the defendant, who may then move
for an order preventing the State from returning the seized property. The
source of the reference to a requirement for a court order may have been
SDCL 23A-37-2, which prevents efforts to take seized evidence from its
proper custodian without a court’s order, or the process set forth in SDCL
23A-37-4 through 23A-37-8 pertaining to applications for return of property
by those claiming a right to possession of such property. However, these
statutory requirements do not apply to the situation here.
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“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.

[¶29.] However, we have never held that a violation of SDCL 23A-37-15 leads

reflexively to a due process violation and the sanction of exclusion or a new trial.

See, e.g., Lyerla, 424 N.W.2d at 911 (holding that a violation of SDCL 23A-37-15

“does not automatically vitiate the conviction”). Instead, we have applied the

Supreme Court’s decisions in Trombetta and Youngblood, focusing on materiality

and good faith. See State v. Danielson, 2012 S.D. 36, ¶ 38, 814 N.W.2d 401, 412

(applying Trombetta and Youngblood to hold that the defendant “failed to

demonstrate that the State, in bad faith, destroyed evidence that would have played

a significant role in his defense”); State v. Bousum, 2003 S.D. 58, ¶¶ 15-16, 663

N.W.2d 257, 262-63 (stating Trombetta’s materiality test and disposing of lost

evidence claim through the application of Youngblood’s bad faith standard); Lyerla,

424 N.W.2d at 911 (applying Trombetta’s materiality test in a pre-Youngblood

decision).

[¶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.

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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 SDCL 23A-37-15 without any additional

10. It appears law enforcement officers viewed the 16 firearms found in Zephier’s
car as exclusively inculpatory. There is no suggestion that investigators ever
considered testing the weapons for fingerprint evidence to build a case
against either Cranmer or Zephier.

11. Zephier’s admissions during sentencing illustrate the difficulty of assessing
the value of the lost opportunity to test for the absence of his fingerprints.
During his statement at sentencing and in the presence of his attorney,
Zephier acknowledged playing a role in the gun thefts, claiming an inverted
version of Cranmer’s testimony in which Zephier, not Cranmer, was the
driver while Cranmer removed the firearms from Soulek’s home and placed
them in Zephier’s car. In so doing, Zephier effectively admitted guilt for the
burglary offense under an aider and abettor theory even if, as he claims, his
fingerprints were not on the guns.

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showing that officers or the prosecutor were acting in bad faith. We can discern

nothing from the decisions of the United States Supreme Court or our own cases

that supports the view that due process requires such an inflexible per se bad faith

rule.

[¶33.] Finally, the circuit court undertook appropriate remedial efforts to

address the State’s violation of SDCL 23A-37-15. It granted Zephier leeway to cross

examine the State’s witnesses regarding his inability to examine the guns. In

addition, the court’s instruction to the jury regarding the State’s obligation to

preserve evidence allowed jurors to exercise their judgment to determine the

significance of the State’s statutory noncompliance:

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

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[¶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.

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[¶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 appears the guns had been handled extensively after they were seized and then

returned.

[¶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

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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.

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