#27911-a-DG
2017 S.D. 32


                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA
                                  ****


STATE OF SOUTH DAKOTA,                     Plaintiff and Appellee,

      vs.

SHELLY D. STANLEY,                         Defendant and Appellant.

                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    MEADE COUNTY, SOUTH DAKOTA

                                  ****

                 THE HONORABLE JEROME A. ECKRICH, III
                               Judge

                                  ****


MARTY J. JACKLEY
Attorney General

GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.


TIMOTHY J. BARNAUD
Spearfish, South Dakota                    Attorney for defendant
                                           and appellant.

                                  ****


                                           CONSIDERED ON BRIEFS
                                           APRIL 24, 2017
                                           OPINION FILED 05/31/17
#27911

GILBERTSON, Chief Justice

[¶1.]        Shelly D. Stanley appeals her conviction and sentence for possessing

cocaine. She argues her Fourth Amendment rights were violated in a number of

ways. She also challenges several of the circuit court’s evidentiary rulings. Finally,

she argues that several comments made during the State’s closing argument were

inappropriate and that the cumulative effect of these alleged errors denied her a

fair trial. We affirm.

                            Facts and Procedural History

[¶2.]        On August 3, 2015, the Sturgis Motorcycle Rally was underway in

Sturgis, South Dakota. Shortly before 1:00 a.m., Sturgis Police Officers Mike

Varilek and Tom Strickland (collectively, “the Officers”) received a report from

another police officer that a male and female had entered a single-occupancy,

portable toilet located in the middle of 2nd Street. Officer Varilek testified that

such an event is extremely uncommon and that he had never seen it happen in

seven years of working at the Sturgis Rally. Officer Varilek also testified that his

primary objective at the Rally is public safety, and considering the alcohol and drug

use that is common at the Rally, he wanted to be sure the female occupant was not

being assaulted. Similarly, Officer Strickland testified that prostitution and human

trafficking are concerns at the Rally. The Officers walked over to the portable

toilet, which was a handicap-accessible unit located at the end of a row of five or six

units. The toilet enclosure was vented around the top of the unit. The Officers

testified that at the time, foot traffic in the area was minimal, and noise levels were

low.


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[¶3.]         After approaching the portable toilet, 1 the Officers overheard a

conversation between the occupants, who were later identified as Stanley and

Christopher Shuler. Officer Varilek testified he heard the following exchange:

              [Shuler]: You need to pack more in there.
              [Stanley]: Can you believe we’re in an outhouse [or porta-potty]
              in Sturgis getting ready to—
              [Shuler]: Shh, you need to be quiet. 2

The Officers also heard “a plastic bag rustling around as if somebody was digging in

a sandwich bag.” Officer Varilek concluded, “[b]ased on [his] training and

experience as a drug interdiction officer,” that Shuler and Stanley were conducting

a drug transaction. Officer Varilek then knocked on the door and identified himself

as a police officer. About 30 seconds later, the door opened, and Shuler walked out.

Officer Varilek followed Shuler to question him.

[¶4.]         Officer Strickland stayed with Stanley. He immediately observed

Stanley seated on the toilet, with a plastic bag in her left hand. Officer Strickland

commanded Stanley to show him her hands, but she leaned forward and placed the

bag in the waste receptacle below her. After Stanley got up, Officer Strickland

inspected the toilet’s interior. Sitting on top of the waste pile was a clear, plastic

bag containing a white substance, and a red straw that had been cut to a length of

about three or four inches. 3 Officer Strickland did not observe any feces or other



1.      Officer Varilek testified he was “a foot or two” away from the portable toilet.
        Officer Strickland testified he was about four to five inches away.

2.      Officer Strickland testified to a similar account.

3.      The Officers recognized this as a “snort tube.”

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waste on top of the bag, nor did he see any other bags in the toilet. After retrieving

the straw and bag, Officer Strickland noticed a white, powdery substance on the

inside of the straw, which led him to conclude it had been used to snort some sort of

drug like cocaine or methamphetamine. Subsequent analysis confirmed the bag

contained cocaine.

[¶5.]        The Officers arrested Stanley and Shuler. After the arrest, the

Officers asked Stanley to provide a urine sample, but she refused. The Officers did

not subsequently seek a warrant. Stanley was later indicted on one count of

possessing a controlled substance in violation of SDCL 22-42-5. Shuler was not

indicted.

[¶6.]        Prior to trial, the circuit court resolved several evidentiary issues. The

court decided that the State could use Stanley’s refusal to provide a urine sample

against her as evidence of consciousness of guilt. However, the court decided that

Stanley would not be able to use the fact that the Officers did not seek a warrant for

her urine as evidence to rebut the State’s use of her refusal to provide a urine

sample. The court also determined that the Officers could testify regarding the

conversation they overheard coming from inside the portable toilet.

[¶7.]        Stanley’s one-day trial occurred on March 2, 2016. After the close of

the State’s evidence, Stanley made a motion for judgment of acquittal, which the

circuit court denied. She also made several objections throughout the course of the

trial that are relevant to this appeal. During Stanley’s closing argument, her

attorney commented on the State’s failure to call Shuler as a witness at trial.

During the State’s closing, the prosecutor remarked that Stanley had the same


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power to subpoena witnesses. And after Stanley’s attorney commented in closing

that the police acted illegally, the prosecutor said the opposite in her closing.

Stanley objected in both instances and was overruled.

[¶8.]        At the conclusion of the trial, the jury returned a guilty verdict. On

June 13, 2016, the court sentenced Stanley to imprisonment for five years but fully

suspended the sentence on the condition that Stanley serve 180 days in prison and

undergo five years of probation. Stanley appeals her conviction and sentence,

raising six issues:

             1.       Whether the evidence obtained by the Officers should
                      have been suppressed.

             2.       Whether the circuit court erred by permitting Officer
                      Varilek to testify that Stanley refused to provide a urine
                      sample after her arrest.

             3.       Whether the circuit court erred by refusing to permit
                      Stanley to offer evidence that the State did not obtain a
                      warrant for a urine sample.

             4.       Whether Officer Varilek’s testimony regarding Shuler’s
                      statements was inadmissible hearsay.

             5.       Whether the prosecutor committed misconduct during the
                      State’s closing argument.

             6.       Whether the cumulative effect of the court’s alleged errors
                      deprived Stanley of a fair trial.

                                  Analysis and Decision

[¶9.]        1.       Whether the evidence obtained by the Officers should
                      have been suppressed.

[¶10.]       Stanley argues the evidence gathered by the Officers should have been

suppressed because according to Stanley, the Officers violated the Fourth

Amendment in two ways. First, she contends that she had an expectation of privacy

inside the portable toilet and that the Officers’ aural observation of her conversation
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with Shuler amounted to a warrantless search. According to Stanley, the Officers

“had no suspicion that criminal activity was taking place.” Second, she contends

that the Officers had no reason to interact with or detain her. We disagree on both

counts.

[¶11.]       The State may not unreasonably search or seize an individual. U.S.

Const. amend. IV; S.D. Const. art. VI, § 11. Under the Fourth Amendment, “the

police must, whenever practicable, obtain advance judicial approval of searches and

seizures through the warrant procedure[.]” Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct.

1868, 1879, 20 L. Ed. 2d 889 (1968). Unless an exception applies, a search is

unreasonable when the government trespasses into an area protected by the Fourth

Amendment without a warrant. United States v. Jones, 565 U.S. 400, 406,

132 S. Ct. 945, 950, 181 L. Ed. 2d 911 (2012) (“[F]or most of our history the Fourth

Amendment was understood to embody a particular concern for government

trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”).

Even when a trespass does not occur, a warrantless search is unreasonable if: (1)

“the individual has shown that ‘he seeks to preserve something as private[,]’” and

(2) “viewed objectively, [the individual’s expectation] is ‘justifiable’ under the

circumstances.” Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580,

61 L. Ed. 2d 220 (1979) (quoting Katz v. United States, 389 U.S. 347, 351, 353,

88 S. Ct. 507, 511-12, 19 L. Ed. 2d 576 (1967)).

[¶12.]       Although Stanley states the legal standard on this issue, she does not

explicitly argue she had a subjective expectation of privacy in the portable toilet.

Stanley was not alone in the single-occupancy, portable toilet, which was located on


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a public street, adjacent to at least one other portable toilet, during a well-attended

event. The portable-toilet enclosure was vented around the top, allowing air—and

sound—to pass freely between the interior of the portable toilet and the outside

world. Moreover, the Officers testified that Stanley and Shuler spoke at a normal,

conversational volume. So while Stanley and Shuler’s decision to lock themselves in

the portable toilet exhibits at least some intent to conceal their activities from

visual observation, they did little to prevent their conversation from being

overheard by any passing member of the public. “[T]he police cannot reasonably be

expected to avert their eyes [or ears] from evidence of criminal activity that could

have been observed by any member of the public.” California v. Greenwood,

486 U.S. 35, 41, 108 S. Ct. 1625, 1629, 100 L. Ed. 2d 30 (1988); see also Arizona v.

Hicks, 480 U.S. 321, 328, 107 S. Ct. 1149, 1154, 94 L. Ed. 2d 347 (1987) (holding

observation of that which is already observable—“without disturbing it—is not a

‘search’ for Fourth Amendment purposes”); Katz, 389 U.S. at 351, 88 S. Ct. at 511

(“What a person knowingly exposes to the public, even in his own home or office, is

not a subject of Fourth Amendment protection.”). Therefore, Stanley has not

demonstrated a subjective expectation of privacy relevant to the observation she

complains of. Even if she had, she cites no authority to support her conclusion that

such a subjective expectation is objectively reasonable; therefore, such argument is

waived. Veith v. O’Brien, 2007 S.D. 88, ¶ 50, 739 N.W.2d 15, 29 (citing SDCL 15-

26A-60(6)) (holding failure to cite supporting authority waives argument).

[¶13.]       The question then becomes whether the Officers had cause to

command Stanley and Shuler to open the door of the portable toilet. “The Fourth


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Amendment permits brief investigative stops . . . when a law enforcement officer

has ‘a particularized and objective basis for suspecting the particular person

stopped of criminal activity.’” Navarette v. California, ___ U.S. ___, ___, 134 S. Ct.

1683, 1687, 188 L. Ed. 2d 680 (2014) (quoting United States v. Cortez, 449 U.S. 411,

417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). “A brief stop of a suspicious

individual, in order to determine his identity or to maintain the status quo

momentarily while obtaining more information, may be most reasonable in light of

the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146,

92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972). Thus, the totality of the

circumstances determines whether such an officer has a particularized and

objective basis to initiate an investigative stop. Navarette, ___ U.S. at ___,

134 S. Ct. at 1687. “Although a mere ‘hunch’ does not create reasonable suspicion,

the level of suspicion the standard requires is ‘considerably less than proof of

wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is

necessary for probable cause.” Id. (citations omitted) (first quoting Terry, 392 U.S.

at 27, 88 S. Ct. at 1883; and then quoting United States v. Sokolow, 490 U.S. 1, 7,

109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)).

[¶14.]       Under the totality of the circumstances, the Officers had a

particularized and objective basis to investigate Stanley and Shuler’s activities.

The Officers knew that two individuals, one male and one female, entered a single-

occupancy, portable toilet. This event occurred at 1:00 a.m. during the Sturgis

Motorcycle Rally—an event that according to the Officers, suffers from drug,

prostitution, and human-trafficking problems. Given these concerns, as well as the


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Officers’ concern that an assault could occur, their intermediate response of simply

walking up to the portable toilet was a measured reaction. Once there, the Officers

overheard conversation and the sound of a plastic bag. Based on their training—

and in particular, Officer Varilek’s experience in drug interdiction—the Officers

concluded a drug transaction was in progress. Only then did the Officers initiate

contact and ask Stanley and Shuler to open the door. Considering the facts known

to the Officers, the context in which those facts occurred, and the Officers’ training

and experience, we conclude the Officers had a particularized and objective basis to

suspect criminal activity was occurring. Once the door was open, Officer Strickland

observed Stanley abandon the bag she held by dropping it into the waste receptacle.

Thus, the Fourth Amendment does not prohibit his retrieval of the straw and bag,

see Greenwood, 486 U.S. at 37, 108 S. Ct. at 1627 (holding Fourth Amendment does

not require warrant for search and seizure of abandoned garbage), and the circuit

court correctly denied Stanley’s motion to suppress evidence.

[¶15.]         2.     Whether the circuit court erred by permitting Officer
                      Varilek to testify that Stanley refused to provide a urine
                      sample after her arrest.

[¶16.]         Next, Stanley argues that Officer Varilek’s testimony regarding her

refusal to provide a urine sample violates the Fourth Amendment. Stanley

principally relies on Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552,

185 L. Ed. 2d 696 (2013). 4 In that case, the United States Supreme Court held

“that in drunk-driving investigations, the natural dissipation of alcohol in the



4.       She also cites to our discussion of McNeely in State v. Fierro, 2014 S.D. 62,
         853 N.W.2d 235.

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#27911

bloodstream does not constitute an exigency in every case sufficient to justify

conducting a blood test without a warrant.” Id. at ___, 133 S. Ct. at 1568. Because

Stanley concludes the Officers could not have compelled her to give a urine sample

without a warrant, she reasons that using her refusal against her at trial violates

the Fourth Amendment. She also argues this error was compounded when the

court read Instruction 23, which informed the jury that it could consider Stanley’s

refusal as evidence of consciousness of guilt. 5

[¶17.]         Stanley’s reliance on McNeely is misconceived in several respects. The

Fourth Amendment protects against unreasonable searches and seizures. Stanley

has not even attempted to explain how asking an arrestee to provide a urine sample

is either a search or a seizure. And McNeely recognized—without doubt or

criticism—that “most States allow the motorist’s refusal to take a [blood alcohol

content] test to be used as evidence against [her] in a subsequent criminal

prosecution.” Id. at ___, 133 S. Ct. at 1566 (plurality opinion) (citing South Dakota



5.       Jury Instruction 23 stated:
               Evidence has been introduced that the Defendant refused to
               submit to a test of Defendant’s urine to determine the existence
               of any controlled drug or substance in Defendant’s urine. The
               refusal to submit is not sufficient, by itself, to establish guilt of
               the Defendant. It is a fact which if proved may be considered by
               you in light of all other proved facts in deciding whether the
               Defendant is guilty or not guilty of the crime of Possession of a
               Controlled Substance. The weight, if any, to which the refusal is
               entitled and whether the conduct shows a consciousness of guilt
               are matters for your determination.
         On appeal, Stanley presents her objections to Officer Varilek’s testimony and
         Instruction 23 as separate arguments. However, both arguments are based
         on Stanley’s Fourth Amendment theory and, therefore, turn on the same
         analysis.

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#27911

v. Neville, 459 U.S. 553, 554, 563-64, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983)

(holding that the use of such an adverse inference does not violate the Fifth

Amendment right against self-incrimination)); accord Birchfield v. North Dakota,

___ U.S. ___, ___, 136 S. Ct. 2160, 2185, 195 L. Ed. 2d 560 (2016) (“Our prior

opinions have referred approvingly to the general concept of implied-consent laws

that impose civil penalties and evidentiary consequences on motorists who refuse to

comply.”). In South Dakota, the same is true for drug offenses. State v. Mattson,

2005 S.D. 71, ¶ 45, 698 N.W.2d 538, 552 (“[T]he refusal by a defendant of an

officer’s legitimate request to take a urinalysis . . . is admissible at trial . . . even if

the defendant is not warned that [her] refusal will be admissible at trial.”).

[¶18.]        Even if McNeely applies, Stanley’s analysis is incomplete. McNeely

did not hold that the exigent-circumstances exception to the warrant requirement

can never validate a warrantless search. McNeely simply held “that in drunk-

driving investigations, the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify conducting a blood test

without a warrant.” ___ U.S. at ___, 133 S. Ct. at 1568 (emphasis added). The

necessary implication of this holding is that in some drunk-driving investigations,

the natural dissipation of alcohol or drugs in the bloodstream does constitute an

exigency sufficient to justify conducting a blood test without a warrant. Stanley

provides no analysis on the question whether the circumstances of this case were




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sufficiently exigent to justify a warrantless search (that did not even occur).

Therefore, Stanley’s argument is wholly unsupported by McNeely. 6

[¶19.]        Stanley’s argument falls short of establishing that a search occurred,

let alone that such a search would have violated the Fourth Amendment. The

circuit court did not err by permitting Officer Varilek’s testimony, nor did it err by

issuing Instruction 23.

[¶20.]        3.    Whether the circuit court erred by refusing to permit
                    Stanley to offer evidence that the State did not obtain a
                    warrant for a urine sample.

[¶21.]        Next, Stanley argues that because the circuit court permitted Officer

Varilek’s testimony, it should have also permitted testimony that the Officers did

not seek a warrant for a urine sample. “This Court reviews a decision to admit or

deny evidence under the abuse of discretion standard.” Donat v. Johnson, 2015 S.D.

16, ¶ 24, 862 N.W.2d 122, 130 (quoting Ferebee v. Hobart, 2009 S.D. 102, ¶ 12,

776 N.W.2d 58, 62). The only reason advanced by Stanley for wanting to introduce

the Officers’ failure to seek a warrant is that according to Stanley, they were

required to do so under McNeely. Like this Court, the circuit court rejected

Stanley’s McNeely argument. Stanley has not advanced any other argument to

establish the relevance of her desired evidence.

[¶22.]        Even if she did, in order to be admissible, evidence must be relevant.

SDCL 19-19-402. And even then, “[t]he court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . confusing the issues


6.       Stanley’s argument is really a Fifth Amendment, self-incrimination
         argument. The United States Supreme Court rejected the same argument in
         Neville, 459 U.S. at 554, 103 S. Ct. at 917-18.

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[or] misleading the jury[.]” SDCL 19-19-403. The circuit court concluded that

Stanley’s desired evidence would confuse and mislead the jury into deciding a legal

question as a factual matter—i.e., whether the Officers were required to obtain a

warrant. Under the circumstances, and given our rejection of Stanley’s McNeely

theory, we cannot say the circuit court’s decision was “a choice outside the range of

permissible choices[.]” State v. Kvasnicka, 2016 S.D. 2, ¶ 7, 873 N.W.2d 705, 708

(quoting Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). Therefore, the

court did not abuse its discretion in denying Stanley’s desired evidence.

[¶23.]       4.     Whether Officer Varilek’s testimony regarding Shuler’s
                    statements was inadmissible hearsay.

[¶24.]       Next, Stanley argues that the circuit court “incorrectly allowed the

State to introduce inculpatory hearsay statements from . . . Shuler through Officer

Varilek over the objection of defense counsel.” Specifically, Officer Varilek testified

that Shuler said, “You need to pack more in there” and “Shh, you need to be quiet.”

Stanley objected, arguing only that such statements are hearsay. On appeal,

Stanley also contends that Officer Varilek’s testimony was a violation of her Sixth

Amendment right to confront her accuser because the State did not call Shuler as a

witness at trial. The State responds that Officer Varilek’s testimony was not

hearsay. It also contends that Officer Varilek’s testimony did not violate the Sixth

Amendment because Shuler’s statements did not facially incriminate Stanley.

[¶25.]       We agree with the State that Officer Varilek’s testimony regarding

Shuler’s statements was not hearsay. The word hearsay is statutorily defined as “a

statement that: (1) [t]he declarant does not make while testifying at the current

trial or hearing; and (2) [a] party offers in evidence to prove the truth of the matter

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asserted in the statement.” SDCL 19-19-801(c). The State did not introduce

Shuler’s statements in order to prove that Stanley did, in fact, “need to pack more in

there” or that she “need[ed] to be quiet.” Instead, the purpose of Officer Varilek’s

testimony about the conversation he heard in the portable toilet was to give context

for why he suspected the occupants were engaged in illegal activity. Thus, Officer

Varilek’s testimony was not hearsay because Shuler’s statements were not

introduced to prove the truth of Shuler’s assertions.

[¶26.]         Next, Stanley argues on appeal that Officer Varilek’s testimony

regarding Shuler’s statements violates her Sixth Amendment right of confrontation.

But as noted above, when Stanley objected to Officer Varilek’s testimony, she did so

only on the basis that in her view, the statements were hearsay. Stanley does not

direct us to any portion of the record indicating that she raised this issue before the

circuit court, nor have we been able to locate such an argument during our own

review. “This Court will not address arguments that are raised for the first time on

appeal.” Legrand v. Weber, 2014 S.D. 71, ¶ 26, 855 N.W.2d 121, 129. Therefore,

Stanley’s Sixth Amendment argument is waived. Id.

[¶27.]         Even if Stanley had raised this argument before the circuit court, we

do not agree. The Sixth Amendment guarantees a criminal defendant the right “to

be confronted with the witnesses against [her.]” U.S. Const. amend. VI. 7 Stanley

principally relies on Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620,


7.       The scope of the Confrontation Clause is not coextensive with that of the
         rules of evidence. California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930,
         1933-34, 26 L. Ed. 2d 489 (1970). Therefore, our determination that the
         statements at issue were not hearsay does not resolve Stanley’s Sixth
         Amendment argument.

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20 L. Ed. 2d 476 (1968). 8 In that case, the United States Supreme Court “held that

a defendant is deprived of [her] Sixth Amendment right of confrontation when the

facially incriminating confession of a nontestifying codefendant is introduced at

their joint trial, even if the jury is instructed to consider the confession only against

the codefendant.” Richardson v. Marsh, 481 U.S. 200, 207, 107 S. Ct. 1702, 1707,

95 L. Ed. 2d 176 (1987) (emphasis added) (discussing Bruton, 391 U.S. at 135-36,

88 S. Ct. at 1627-28). As the emphasized portions of this quotation indicate, the

present case is notably different than Bruton—Shuler and Stanley were not

codefendants.

[¶28.]         Additionally, Shuler’s statements—i.e., “You need to pack more in

there” and “Shh, you need to be quiet”—are not facially incriminating. In Bruton,

the hearsay statement at issue consisted of a codefendant’s oral confession that he

and the defendant committed armed robbery. 391 U.S. at 124, 88 S. Ct. at 1621.

Thus, on its face, the statement asserted that the defendant committed the crime

for which he was prosecuted. Similarly, the hearsay statement at issue in Marsh

was also a codefendant’s confession. However, in contrast to Bruton, the confession

was redacted to remove explicit reference to the defendant. Marsh, 481 U.S. at 203-

04, 107 S. Ct. at 1705. Thus, “the confession was not incriminating on its face, and

became so only when linked with evidence introduced later at trial[.]” Id. at 208,

107 S. Ct. at 1707. This “important distinction” removed the statement from the

Bruton rule. Id. Likewise, the statements at issue in the present case are not



8.       She also cites to our discussion of Bruton in State v. Fool Bull, 2009 S.D. 36,
         766 N.W.2d 159.

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incriminating when viewed alone—they became incriminating only when linked

with other evidence introduced at trial. Under Marsh, therefore, these statements

are not facially incriminating.

[¶29.]       Moreover, unlike Officer Varilek’s testimony, the statement at issue in

Bruton was inadmissible hearsay. Tennessee v. Street, 471 U.S. 409, 413,

105 S. Ct. 2078, 2081, 85 L. Ed. 2d 425 (1985) (discussing Bruton, 391 U.S. at 135-

36, 88 S. Ct. at 1627-28). The analysis is different when the State introduces a

statement for a “legitimate, nonhearsay purpose[.]” Id. at 417, 105 S. Ct. at 2083.

As explained above, the statements in the present case were offered for a legitimate,

nonhearsay purpose—establishing the basis for the Officers’ suspicion that drug

activity was occurring in the portable toilet and their subsequent decision to make

contact with Stanley and Shuler. “The jury’s attention was directed to this

distinctive and limited purpose by the prosecutor’s questions . . . .” Id. And because

the statements at issue are not facially incriminating, there was little risk (if any)

that the jury could have used Shuler’s statements to infer Stanley was guilty. See

id. at 414-15, 105 S. Ct. at 2082. Therefore, even if Stanley had raised this

argument before the circuit court, no Sixth Amendment violation occurred.

[¶30.]       5.     Whether the prosecutor committed misconduct during the
                    State’s closing argument.

[¶31.]       Next, Stanley argues the prosecutor committed misconduct in two

ways. First, Stanley contends that during the State’s closing argument, the

prosecutor improperly commented that “Law enforcement acted lawfully on August

3rd of 2015. That’s been decided and that’s been determined.” According to

Stanley, this comment referenced the circuit court’s earlier ruling on a suppression

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motion and violated the circuit court’s pretrial order against mentioning that ruling

at trial. Assuming without deciding that this comment amounts to misconduct, we

have previously indicated that prosecutorial misconduct can be mitigated when “the

[S]tate’s actions [are] in direct response to [a defendant’s] own closing argument” or

when the circuit court acts “to curtail any improper inference the jury may have

taken from the closing arguments.” State v. Davi, 504 N.W.2d 844, 856 (S.D. 1993).

The State’s commentary seems to be a response to statements made during

Stanley’s closing argument: “This is a case . . . about police overbreaching [sic]

conduct by law enforcement, it shows complete disregard and actually disdained

[sic] for the privacy and constitutional rights that this country affords its citizens.”

Additionally, after Stanley objected, the court interrupted the State’s argument by

calling both attorneys to the bench, and the prosecutor then changed subjects. And

when closing arguments concluded, the court advised the jury to reread the jury

instructions—specifically, the instruction on comments made by the attorneys.

Under these facts, we do not think the prosecutor’s comments rise to the level of

reversible error.

[¶32.]       Stanley also faults the prosecutor for stating during closing argument

that Stanley “has the ability to call witnesses as well. So [she has] that full ability

to do that here today.” According to Stanley, these comments were an improper

attempt to shift the burden to her. Contrary to Stanley’s contention, “[w]e have

consistently approved of statements alluding to the fact that the accused has failed

to produce other witnesses or evidence.” State v. Rosales, 302 N.W.2d 804, 806

(S.D. 1981). Moreover, toward the end of Stanley’s closing argument, her attorney


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said: “And where’s Mr. [Shuler]? . . . [The State] failed to produce the accusing

witness, Christopher Shuler.” The prosecutor then made the objected-to statement

at the beginning of the State’s rebuttal. After Stanley objected, the court said:

“Well, the way you framed it, I think [the State’s comment is] fair.” We review

prosecutor-misconduct claims for an abuse of discretion. State v. Bariteau,

2016 S.D. 57, ¶ 23, 884 N.W.2d 169, 177. We do not think the court’s conclusion is

“outside the range of permissible choices.” Kvasnicka, 2016 S.D. 2, ¶ 7, 873 N.W.2d

at 708 (quoting Gartner, 2014 S.D. 74, ¶ 7, 855 N.W.2d at 850).

[¶33.]       6.     Whether the cumulative effect of the court’s alleged errors
                    deprived Stanley of a fair trial.

[¶34.]       Because we conclude the circuit court did not err, this argument is

meritless.

                                     Conclusion

[¶35.]       Officers Varilek and Strickland did not violate the Fourth Amendment

when they approached the portable toilet, overheard Stanley and Shuler’s

conversation, or retrieved the straw and bag containing cocaine. Therefore, the

circuit court correctly denied Stanley’s motion to suppress the evidence. The circuit

court also correctly concluded that the Fourth Amendment does not prohibit the

State from using a criminal defendant’s refusal to voluntarily provide a urine

sample as evidence of consciousness of guilt at trial. The circuit court did not abuse

its discretion in refusing to permit Stanley to present evidence that the Officers did

not obtain a warrant for her urine. Shuler’s statements, introduced through Officer

Varilek’s testimony, were not hearsay. Finally, the prosecutor’s comments during

the State’s closing argument did not deny Stanley a fair trial.

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[¶36.]   We affirm.

[¶37.]   ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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