State v. Lindner

#24203-rev&rem-PER CURIAM
2007 SD 60

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JAMES MARVIN LINDNER, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOSEPH NEILES
Judge

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LAWRENCE E. LONG
Attorney General

KATIE L. HANSEN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

MICHAEL G. MILLER
Minnehaha County Public Defender Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON APRIL 23, 2007

OPINION FILED 6/27/07
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PER CURIAM

[¶1.] James Lindner (Lindner) appeals his conviction for possession of a

controlled substance and possession of marijuana contending the trial court erred in

denying the admission of proffered testimony. We reverse and remand.

FACTS

[¶2.] On September 30, 2005, Lindner and Daniel Stricherz (Stricherz) went

to a Wal-Mart store in Sioux Falls, South Dakota. Stricherz remained in the vehicle

while Lindner went inside. Lindner met his stepson, Michael Richards (Richards),

at the front of the store. Stricherz testified that the two got into an argument but

Stricherz could not hear what was being said. Stricherz testified that Lindner

yelled at Richards and took something from him and put it into his pocket. Lindner

returned to the car and the two left.

[¶3.] At this point Lindner and Stricherz went to Lindner's sister's house for

a few minutes to see if she wanted to go with them to play bingo for their father's

birthday. They left without her and went to play bingo at about 6:00 p.m. They

played until approximately 10-10:30 p.m. After bingo they went to a casino in Sioux

Falls. At approximately 2:30 a.m. law enforcement stopped Lindner's vehicle for a

nonworking headlight, brake light and license plate light.

[¶4.] Lindner did not have his driver's license or proof of insurance and was

asked to step out of the vehicle. Lindner consented to a pat down search. The

officer found a slender object in a front pocket that Lindner indicated was his work

pen. When asked to remove the item, Lindner attempted to switch it into his other

hand before the officer could see what it was and acted as though he could not find

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the object. The officer grabbed Lindner and Lindner threw the object, which was a

glass pipe, to the ground. After he was placed under arrest Lindner indicated he

had more contraband in his pocket. The officer found a small plastic bag with

marijuana and a pipe. A field test indicated that the pipe that was thrown to the

ground contained methamphetamine residue. Lindner indicated to the officer these

items belonged to his stepson, Richards. 1

[¶5.] Lindner was charged with possession of a controlled drug or substance

(methamphetamine), possession of marijuana and possession of drug paraphernalia.

On the morning of trial, Lindner asked the trial court to grant Richards immunity if

he testified because the State had refused to grant immunity. The trial court

denied the request and appointed Richards an attorney to advise him of his rights

because he was going to be called as a witness in the proceeding. During trial, from

opening statement to closing argument, defense counsel argued that Lindner took

the items away from his stepson. Richards was called as a witness at the trial.

Richards invoked his Fifth Amendment privilege against self-incrimination in

response to defense questions about the occurrence at Wal-Mart. 2

[¶6.] Richards was excused as a witness and a conference between counsel

and the judge was held concerning the next witness. The jury was removed from

the courtroom and the following exchange took place:

1. The officer testified a UA was not conducted on Lindner following his arrest.

2. Lindner did not testify at trial. The defendant's case consisted of his parents'
testimony that he did play bingo for his father's birthday that evening along
with Stricherz. Stricherz then testified as to what he observed at Wal-Mart.
Richards was called and asked about that incident which resulted in the
invocation of his Fifth Amendment privilege.

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Defense counsel: At this point I would intend to call a
paralegal from my office to testify under 804(a)(1). I
believe this witness asserting his right to Fifth
Amendment, that makes him an unavailable witness.
And I would intend to call the paralegal to testify as to
what he told her during their interview.

The Court: [State], what's the---

State: Judge, the state is objecting, I guess, on a couple of
grounds. One, the fact of the matter is the paralegal
coming and testifying, the state is not going to be able to
adequately cross-examine her. The witness in this
particular case did come, did take the stand, exercised
that Fifth Amendment right. And I believe based on that
I have no—I have no means of adequately cross-
examining a witness who is not the person who made
statements.

The Court: Well, I don't think that we read 804(a)(1) all
by itself. We have to look at the other statutes as well.
And specifically Rule 804(b)(6), and as it's codified in
SDCL 19-16-35, which is the statute that deals with other
hearsay being admissible if the declarant is unavailable.
That statute requires there be advanced notice by the
proponent to the adverse party sufficiently in advance of
the trial or hearing to provide the adverse party with a
fair opportunity to prepare to meet it.

[Defense counsel], did you give notice to [State] before the
trial that you anticipated that you might be needing to
call the paralegal to testify as to these interviews that you
had?

Defense counsel: I did not, Your Honor.

The Court: And that notice includes or is supposed to
include your intent to offer the statement and the
particulars of it, including the name and the address of
the declarant. It also requires that the court has to do a
weighing as to whether the statement is offered as a
material fact; whether the statement is more probative on
the point for which it is offered than any other evidence
which the proponents can procure through reasonable
efforts; and the general purpose of these rules and the
interests of justice will best be served by admission of the
statement into evidence.
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And it also has to have equivalent circumstantial
guarantees of trustworthiness consistent with the
statutes as set forth in Sections 19-16-30 to 19-16-34.
Those statutes deal with former testimony which would
be testimony under oath, dying declarations, admissions
against interest, statements about personal or family
history and decedent's statements. I suppose that it's
possible—and I don't know what that testimony is at this
point—but I suppose it's possible that it might be in the
nature of admissions against interest. I anticipate that's
what that testimony would be, so under those
circumstances it might arguably have that circumstantial
guarantee of trustworthiness. But absent advance notice
to state, I don't think I can allow that testimony.

Defense counsel: Thank you, Judge.

Court: Any further record you wish to make with respect
to that testimony, [defense counsel]?

Defense counsel: I don't judge. I would let the court know
that I don't have any other witnesses then.

(Emphasis added.) Lindner was convicted for possession of methamphetamine and

marijuana and acquitted on the paraphernalia charge. The trial court only imposed

sentence for methamphetamine possession. Lindner received a suspended sentence

and 180 days in the county jail based on the trial court's sentencing statement that

this was essentially a "residue-type" case. Lindner appeals contending the trial

court's decision denying the testimony was an abuse of discretion.

ANALYSIS

[¶7.] We review a trial court's ruling on the admissibility of evidence under

an abuse of discretion standard. State v. Mattson, 2005 SD 71, ¶13, 698 NW2d 538,

544. "With regard to the rules of evidence, abuse of discretion occurs when a trial

court misapplies a rule of evidence, not when it merely allows or refuses

questionable evidence." State v. Asmussen, 2006 SD 37, ¶13, 713 NW2d 580, 586.
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Here, the trial court abused its discretion in determining advance notice of the

statement was required for a statement against interest under SDCL 19-16-32

(Rule 804(b)(3)). In analyzing the admissibility of the statement, the trial court

first considered its admissibility under SDCL 19-16-35 (Rule 804(b)(6))(catch-all

provision), which requires advance notice. SDCL 19-16-35 provides:

A statement not specifically covered by any of §§ 19-16-30
to 19-16-34, inclusive, but having equivalent
circumstantial guarantees of trustworthiness, is not
excluded by § 19-16-4 if the declarant is unavailable as a
witness and if the court determines that

(1) the statement is offered as evidence of a
material fact;
(2) the statement is more probative on the point
for which it is offered than any other
evidence which the proponent can procure
through reasonable efforts; and
(3) the general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.

However, a statement may not be admitted under this
section unless the proponent of it makes known to the
adverse party sufficiently in advance of the trial or
hearing to provide the adverse party with a fair
opportunity to prepare to meet it, his intention to offer
the statement and the particulars of it, including the
name and address of the declarant.

SDCL 19-16-35 (emphasis added). However, although this catch-all hearsay

exception contains an advance notice requirement, that notice requirement does not

apply to the firmly rooted exceptions to the hearsay rule found in SDCL 19-16-30

thru 19-16-34.

[¶8.] Therefore, Lindner contends that the trial court erred in ruling that

the statement was also excluded under SDCL 19-16-32 (admissions against

interest). That statute provides:
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A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject him to civil or criminal
liability, or to render invalid a claim by him against
another, that a reasonable man in his position would not
have made the statement unless he believed it to be true,
is not excluded by § 19-16-4 if the declarant is unavailable
as a witness. A statement tending to expose the declarant
to criminal liability and offered to exculpate the accused
is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.

SDCL 19-16-32. "A party seeking to admit statements under this exception to the

hearsay rule must prove (1) the declarant is unavailable, (2) the statement so far

tends to subject the declarant to criminal liability that a reasonable person would

not have made the statement unless he believed it to be true, and (3) the statement

is corroborated by circumstances clearly indicating its trustworthiness." State v.

Brings Plenty, 490 NW2d 261, 266 (SD 1992)(citations omitted). As the trial court

recognized and defense counsel indicated, the witness was being called to testify as

to what Richards stated when she interviewed him about the encounter at Wal-

Mart. 3 Richards previously invoked his Fifth Amendment privilege against self-

incrimination concerning the encounter and was therefore unavailable to testify.

See SDCL 19-16-29 (Rule 804(a))("Unavailability as a witness includes situations in

which the declarant is exempted by ruling of the court on the ground of privilege

from testifying concerning the subject matter of his statement."); Brings Plenty, 490

3. In State v. Crawford, 2007 SD 20, ¶ 10, 729 NW2d 346, 348, this Court
examined a situation where a paralegal was also called to testify to
statements made during an interview after the declarant invoked his Fifth
Amendment privilege against self-incrimination. The trial court allowed
some of the statements under SDCL 19-16-32 and excluded others and we
affirmed the trial court's evidentiary rulings. Id. ¶ 22.

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NW2d at 266 (declarant's exercise of his Fifth Amendment privilege makes him

unavailable under SDCL 19-16-32). 4 The trial court did not further analyze the

admissibility of the witness' testimony and relied only on the lack of notice to the

State in excluding the testimony; a requirement that does not exist for admission

under SDCL 19-16-32. This was an error of application amounting to an abuse of

discretion.

[¶9.] As the trial court indicated in its ruling before invoking the notice

requirement, a statement by Richards that he possessed drugs and paraphernalia

would subject him to criminal liability as it is against his interest. The jury was

also presented with evidence that Stricherz observed a verbal altercation with

Lindner and Richards and that Lindner took something away from Richards. The

evidence further indicated Lindner immediately informed law enforcement the

items belonged to Richards when he was arrested. On remand, the trial court

should apply the test set forth in Brings Plenty to this evidence and the proffered

statement in order to determine its admissibility, an inquiry that was bypassed by

the errant notice requirement. 5

4. "The Rule requires not the unavailability of the declarant but the
unavailability of the declarant's testimony. There is a difference. The
declarant's presence on the witness stand will not block use of his or her
extra-judicial statement if the declarant refuses to answer [or] exercises a
privilege not to answer[.]" Weinstein's Federal Evidence, Vol. 5, § 804.03[1]
(2006). The exercise of the privilege against self-incrimination creates such
unavailability. Weinstein's, § 804.03[2] n5.

5. "The corroboration requirement of this rule is a preliminary determination as
to the statement's admissibility, not an ultimate determination about the
statement's truth." Weinstein's, § 804.06[5][b][i]. "The corroboration
requirement should not be used as a means of usurping the jury's function."
Weinstein's, § 804.05[b][iii]. "Evidence that the declarant was near the scene
and had some motive or background connecting him with the crime should be
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[¶10.] Finally, the State argues that even if the defense theory of the case is

true a parent taking drugs away from a child has no defense to a conviction and the

fact Lindner did not dispose of the drugs immediately evidences his criminal intent.

In order to support a conviction, the State was required to establish the possession

was "knowing." See SDCL 22-42-5; 6 ("No person may knowingly possess . . ." ). In

light of our decision to reverse and remand we do not address this contention other

than to note that this is a question left to the jury to determine, especially

considering the fact that Lindner was convicted for possession of methamphetamine

based on residue in a pipe.

[¶11.] Reversed and remanded.

[¶12.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and

MEIERHENRY, Justices, participating.

sufficient corroboration." Id. To aid in the corroboration analysis, we note
that the Eighth Circuit Court of Appeals has articulated the following factors:

(1) whether there is any apparent motive for the out-of-court declarant
to misrepresent the matter, (2) the general character of the speaker,
(3) whether other people heard the out-of-court statement, (4) whether
the statement was made spontaneously, (5) the timing of the
declaration and the relationship between the speaker and the witness.

United States v. Bobo, 994 F2d 524, 528 (8thCir 1993) (citing United States
v. Rasmussen, 790 F2d 55, 56 (8thCir 1986)).

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