#25461-a-GAS

2010 S.D. 75

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

v.

ERNEST HARRIS,                               Defendant and Appellant.

                                   * * * *

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

                                   * * * *

                        HONORABLE JOSEPH NEILES
                                Judge

                                   * * * *
MARTY J. JACKLEY
Attorney General

ANDREW J. KNECHT
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.

MARK KADI
Minnehaha County Office
 of the Public Advocate
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                   * * * *
                                             CONSIDERED ON BRIEFS
                                             ON AUGUST 24, 2010

                                             OPINION FILED 09/22/10
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SEVERSON, Justice

[¶1.]        Ernest Harris was convicted of two counts of Distribution of a

Controlled Substance in violation of SDCL 22-42-2. He appeals, arguing that the

trial court abused its discretion by admitting audio recordings of the two controlled

buys of crack cocaine into evidence and by providing the jury with an aiding and

abetting instruction. We affirm the trial court.

                                  BACKGROUND

[¶2.]        In June 2008, a confidential informant working with the Sioux Falls

Area Drug Task Force arranged to make a controlled buy of crack cocaine from

Harris. Detective Thomas Schmitz of the Sioux Falls Police Department was the

case agent for the operation and worked directly with the informant. Before the

controlled buy, Detective Schmitz equipped the informant with a recording device.

On the recording, Detective Schmitz stated the date and time, identified the

informant, set forth the operation’s purpose, and discussed safety procedures with

the informant. Detective Schmitz also gave the informant $120 in bills with pre-

recorded serial numbers to buy crack cocaine from Harris. The informant verbally

acknowledged receipt of the money.

[¶3.]        The informant then called Harris to arrange a meeting. The informant

and Harris arranged to meet at Harris’s room at the Cloud 9 Motel. The informant

drove to the motel while Detective Schmitz and other Task Force members followed.

Because the informant initially planned to meet Harris at a home near downtown

Sioux Falls, she stopped along her route to wait for a surveillance unit to relocate to

the Cloud 9 Motel. Upon arriving at the motel, Detective Schmitz and the


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surveillance unit parked in the vicinity. Additionally, a Task Force member was

equipped to listen to and record the conversation in the motel room, but no member

of the Task Force was able to see what occurred in the motel room.

[¶4.]         When the informant arrived at the motel, Harris greeted her and

invited her into his motel room. A few minutes later, Harris’s daughter, Tara,

arrived. The informant handed Harris $120. Harris kept twenty dollars and

handed the $100 bill to Tara. According to the informant, Tara gave Harris some

crack cocaine wrapped in a napkin, which he then handed to the informant. With

the transaction complete, the informant asked Harris permission to return later to

make another purchase and left to meet Detective Schmitz at a pre-determined

location. At the meeting, the informant gave Detective Schmitz the crack cocaine

that she purchased from Harris and related what occurred in the motel room. 1

[¶5.]         Based on the success of the first controlled buy, Detective Schmitz

directed the informant to arrange a second purchase of crack cocaine from Harris.

This second transaction was also recorded. He gave the informant another $120 in

pre-recorded bills. The informant called Harris, and again they agreed to meet at

the Cloud 9 Motel. But when the informant arrived at the motel this second time,

Harris informed her that they would meet Tara at a separate location. Harris and

the informant drove separate vehicles to the corner of 12th Street and Prairie



1.      The informant described the first controlled buy differently in her recorded
        discussion with Detective Schmitz than at trial. In the recorded discussion,
        the informant told Detective Schmitz that she handed the $100 bill to Tara
        and that Tara handed her the crack cocaine. The informant told yet another
        version of events before the grand jury.


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Avenue near downtown Sioux Falls. The informant met Tara at that location, and

the informant drove around the neighborhood while she and Tara exchanged money

for crack cocaine. After the informant left Tara with Harris, the informant met

Detective Schmitz at a pre-determined location. Again, the informant gave

Detective Schmitz the crack cocaine that she purchased and discussed the details of

the purchase with him.

[¶6.]        In October 2008, a Minnehaha County grand jury indicted Harris on

two counts of Distribution of a Controlled Substance in violation of SDCL 22-42-2.

The State later filed a Part II Information, alleging that Harris was a habitual

offender. The case proceeded to trial in April 2009. The informant and Detective

Schmitz both testified at trial, and the State introduced recordings of the controlled

buys into evidence during Detective Schmitz’s testimony. Additionally, the trial

court, over Harris’s objection, provided the jury with an aiding and abetting

instruction. The jury returned a verdict of guilty on both counts. Harris appeals.

                           ANALYSIS AND DECISION

[¶7.]        1.     Whether the trial court abused its discretion by
                    admitting recordings of the controlled buys of crack
                    cocaine into evidence.

[¶8.]        At trial, Harris objected to the introduction of the recordings of the

controlled buys into evidence on three grounds: lack of foundation as to

identification, hearsay, and violation of his Sixth Amendment right to

confrontation. The trial court overruled Harris’s objections and admitted the

recordings. A trial court’s evidentiary rulings are presumed to be correct and are

reviewed under the abuse of discretion standard. State v. Boston, 2003 S.D. 71, ¶


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14, 665 N.W.2d 100, 105 (citing State v. Goodroad, 1997 S.D. 46, ¶ 9, 563 N.W.2d

126, 129). If error is found, it must be prejudicial before this Court will overturn

the trial court’s evidentiary ruling. Id. (citing State ex rel. Dep’t of Transp. v. Spiry,

1996 S.D. 14, ¶ 11, 543 N.W.2d 260, 263).

[¶9.]        Harris first argues that the State did not properly identify the voice on

the recordings as Harris. Authentication or identification is a “condition precedent

to admissibility” and “is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.” SDCL 19-17-1(a) (Rule 901(a)).

Because the issue in this case is the identification of Harris’s voice on the

recordings, we turn to SDCL 19-17-1(5) (Rule 901(b)(5)). That statute provides that

“[i]dentification of a voice, whether heard firsthand or through mechanical or

electronic transmission or recording, by opinion based upon hearing the voice at any

time under circumstances connecting it with the alleged speaker[ ]” is a proper

method of authentication or identification. SDCL 19-17-1(5) (Rule 901(b)(5)).

[¶10.]       The State offered the recordings of the controlled buys into evidence

during Detective Schmitz’s testimony:

             Q:     And do those [recordings] accurately represent the
                    transaction on June 17 as it occurred?

             A:     Both transactions, yes. There are two separate
                    recordings.

             Q:     When you listened and reviewed those, did you recognize
                    the male voice on the recordings?

             A:     I did.
             Q:     And who did you recognize that voice as?

             A:     Ernest Harris.


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               Q:     Had you had contact physical and voice with Mr. Harris
                      before?

               A:     I have.

Because Detective Schmitz identified the voice on the recordings as Harris, the

State laid proper foundation for the recordings. 2 Thus, the trial court did not abuse

its discretion by overruling Harris’s foundation objection.

[¶11.]         Harris next argues that the statements on the recordings constitute

inadmissible hearsay. Essentially, the recordings of the controlled buys have three

parts. Each recording begins with a “preamble,” in which Detective Schmitz states

the date and time, identifies the informant, sets forth the operation’s purpose, and

discusses safety procedures with the informant. During the “preamble,” the

informant also verbally acknowledges receipt of the pre-recorded bills. The bulk of

each recording is conversations between Harris, Tara, and the informant occurring

before, during, and after the controlled buy. Finally, at the end of each recording,

the informant meets with Detective Schmitz to discuss the details of the controlled

buy. Because the recordings contain statements from several individuals offered at

trial for different purposes, we separately analyze each individual’s statements on

the recordings.

[¶12.]         We first turn to Harris’s recorded statements. “‘Hearsay’ is a

statement, other than one made by the declarant while testifying at the trial or


2.       It is immaterial when Detective Schmitz became familiar with Harris’s voice.
         Familiarity for purposes of voice identification “may be acquired either before
         or after the particular speaking which is the subject of the identification[.]”
         Rule 901(b) advisory committee’s note (citing People v. Nichols, 378 Ill. 487,
                                                              (continued . . .)


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hearing, offered in evidence to prove the truth of the matter asserted.” SDCL 19-16-

1(3) (Rule 801(c)). Hearsay is generally inadmissible. SDCL 19-16-4 (Rule 802).

But “[a] statement is not hearsay if it is offered against a party and is [ ] his own

statement, in either his individual or a representative capacity[.]” SDCL 19-16-3(1)

(Rule 801(d)(2)(A)). Harris’s statements on the recordings are admissions by a

party opponent under SDCL 19-16-3(1) (Rule 801(d)(2)(A)) and therefore are not

inadmissible hearsay.

[¶13.]       We turn then to the recorded statements Tara and the informant made

during the controlled buys. Harris’s argument that these statements constitute

inadmissible hearsay overlooks this Court’s well-established “verbal acts” rule:

             Not all out-of-court statements are hearsay. The hearsay rule
             only prohibits admission of evidence of out-of-court statements
             offered to prove the truth of the out-of-court declaration. . . .
             Utterances made contemporaneously with or immediately
             preparatory to an act which is material to the litigation that
             tends to explain, illustrate, or show the object or motive of an
             equivocal act and which are offered irrespective of the truth of
             any assertion they contain, are not hearsay and are admissible.

State v. Charger, 2000 S.D. 70, ¶ 26, 611 N.W.2d 221, 226-27 (quoting State v.

Kelley, 953 S.W.2d 73, 85 (Mo.App. 1997) (citing State v. Copeland, 928 S.W.2d 828,

848 (Mo. 1996))). For example:

             Testimony concerning telephone calls made to or received at a
             particular location has been held admissible frequently in
             prosecutions for bookmaking and other gambling activities,
             where such testimony is offered not to establish the truth of
             what was said over the telephone, but as evidence that the calls
             were made to the location for the purpose of placing bets.

________________________
(. . . continued)
         38 N.E.2d 766 (1942); McGuire v. State, 200 Md. 601, 92 A.2d 582 (1952);
         State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 (1935)).

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Id. ¶ 27, 611 N.W.2d at 227 (quoting Best v. State, 71 Md.App. 422, 526 A.2d 75, 80

(1987) (concluding that a police officer’s testimony about the contents of a telephone

conversation in which a third party called the defendant’s residence was admissible

because it was merely offered as evidence that the call was made to arrange an

illegal drug transaction) (citing Courtney v. State, 187 Md. 1, 48 A.2d 430 (1946))).

[¶14.]       In State v. Wallingford, 43 S.W.3d 852, 856 (Mo.App. 2001), the court

faced a set of facts somewhat similar to the present case. In that case, the

defendant challenged whether a police officer could testify about a conversation

between an informant and the defendant that he overheard on a recording device

placed on the informant during a controlled buy of crack cocaine. The court noted

that the conversation between the informant and the defendant “was an

inextricable element of the sale.” Id. (citing and discussing State v. Moiser, 738

S.W.2d 549, 556 (Mo.App. 1987)). “The conversations . . . immediately preceded or

were contemporaneous with the sale of the crack cocaine.” Id. They were “so

inherently part of the crime of the sale of drugs that they [gave] meaning to the sale

itself.” Id. The court thus held that the statements made by the informant during

the controlled buy were not hearsay and were properly admitted into evidence at

trial. Id.

[¶15.]       This rationale is equally applicable to the present case. Tara’s and the

informant’s statements during the controlled buys were “made contemporaneously

with or immediately preparatory” to the purchases of crack cocaine from Harris and

explain or illustrate what occurred in the motel room or in the informant’s car. See

Charger, 2000 S.D. 70, ¶ 26, 611 N.W.2d at 226 (citations omitted). They were an

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“inextricable element of the sale[s]” and “[gave] meaning to the sale[s.]” See

Wallingford, 43 S.W.3d at 856. Accordingly, the statements were not offered to

prove the truth of their substance, but rather to prove that the purchases of crack

cocaine from Harris actually took place. See Charger, 2000 S.D. 70, ¶ 27, 611

N.W.2d at 227 (quoting Best, 71 Md.App. 422, 526 A.2d at 80). Or, in other words,

they were offered “to establish what was done or created.” See id. ¶ 25, 611 N.W.2d

at 226 (quoting John W. Larson, South Dakota Evidence § 801.1, at 535 (1991)).

Thus, the statements Tara and the informant made during the controlled buys are

not inadmissible hearsay.

[¶16.]       The informant’s recorded statements to Detective Schmitz after the

controlled buys are more problematic. Following each transaction, the informant

met with Detective Schmitz to discuss the details of the controlled buy. During

their discussions, the informant identified Harris and Tara as the individuals from

whom she purchased crack cocaine. These identifications are admissible under

SDCL 19-16-2(3) (Rule 801(d)(1)(C)), which provides: “A statement is not hearsay if

[ ] the declarant testifies at the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is [ ] one of identification of a person

made after perceiving him.” But the informant and Detective Schmitz also

discussed who accepted the pre-recorded bills and who handed the crack cocaine to

the informant. These statements were offered at trial to prove the truth of their




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substance. 3 Because these statements constitute inadmissible hearsay, the trial

court abused its discretion by overruling Harris’s hearsay objection to the

recordings. See, e.g., State v. Johnson, 2009 S.D. 67, ¶ 8, 771 N.W.2d 360, 364-65

(noting that the trial court excluded the conversation between the informant and

the detective after the controlled buy).

[¶17.]         But “a defendant must prove not only that the trial court abused its

discretion in admitting the evidence, but also that the admission resulted in

prejudice.” State v. Lassiter, 2005 S.D. 8, ¶ 13, 692 N.W.2d 171, 175 (citing State v.

Red Star, 2001 S.D. 54, ¶ 10, 625 N.W.2d 573, 577 (citing SDCL 15-6-61)). “Error is

prejudicial when, ‘in all probability it produced some effect upon the final result and

affected rights of the party assigning it.’” Novak v. McEldowney, 2002 S.D. 162, ¶ 7,

655 N.W.2d 909, 912 (quoting State v. Smith, 1999 S.D. 83, ¶ 39, 599 N.W.2d 344,

353). The informant testified at trial about the details of the controlled buys. And

the State relied on the informant’s trial testimony rather than her recorded

discussions with Detective Schmitz in its closing argument. Therefore, although the



3.       Harris impeached the informant during cross-examination, even suggesting
         an improper financial motive to testify against Harris. SDCL 19-16-2(2)
         (Rule 801(d)(1)(B)) provides:

               A statement is not hearsay if [ ] the declarant testifies at trial or
               hearing and is subject to cross-examination concerning the
               statement, and the statement is [ ] consistent with his testimony
               and is offered to rebut an express or implied charge against him
               of recent fabrication or improper influence or motive[.]

         Because the informant described the first controlled buy differently in her
         recorded discussion with Detective Schmitz than at trial, the recordings of
         this discussion were not admissible as a prior consistent statement under
         SDCL 19-16-2(2) (Rule 801(d)(1)(B)).

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trial court erred by overruling Harris’s hearsay objection, the admission of the

recordings into evidence did not prejudice Harris’s substantial rights. See SDCL 15-

6-61.

[¶18.]         Harris finally argues that admitting the informant’s recorded hearsay

statements to Detective Schmitz violated his Sixth Amendment right to

confrontation. The Confrontation Clause of the Sixth Amendment provides: “In all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him[.]” 4 U.S. Const. amend. VI. In Crawford v. Washington,

the United States Supreme Court held that this provision bars “admission of

testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had a prior opportunity for cross-

examination.” Johnson, 2009 S.D. 67, ¶ 18, 771 N.W.2d at 368 (quoting Crawford,

541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004)) (emphasis added).

Because the informant testified at trial during the State’s case-in-chief and was

thoroughly cross-examined by Harris’s counsel, Harris’s argument that admission of




4.       Similarly, Article VI, Section 7 of the South Dakota Constitution provides:
         “In all criminal prosecutions the accused shall have the right . . . to meet the
         witnesses against him face to face[.]” S.D. Const. art. VI, § 7. Harris has not
         asserted, and we have not found, a basis to distinguish the protections
         afforded by the South Dakota Constitution from those provided by the federal
         Constitution in this case. Our analysis thus applies equally to both
         constitutional provisions. See State v. Thunder, 2010 S.D. 3, ¶ 12, 777
         N.W.2d 373, 378 (citing State v. Deneui, 2009 S.D. 99, ¶ 12, 775 N.W.2d 221,
         229).

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the informant’s recorded statements to Detective Schmitz violated his Sixth

Amendment right to confrontation is without merit. See id.

[¶19.]       2.     Whether the trial court abused its discretion by
                    providing the jury with an aiding and abetting
                    instruction.

[¶20.]       Harris argues that the trial court abused its discretion by providing

the jury with an aiding and abetting instruction. SDCL 22-3-3 states: “Any person

who, with the intent to promote or facilitate the commission of a crime, aids, abets,

or advises another person in planning or committing the crime, is legally

accountable, as a principal to the crime.” And the trial court instructed the jury:

             All persons who directly commit the acts constituting the crime
             or who did aid and abet in its commission, although not present,
             are considered as principals in the crime and thus committed
             and are equally guilty. A person aids and abets the commission
             of the crime if the defendant with the intent to promote or
             facilitate the commission of a crime, aids, abets or advises
             another person in planning or committing the crime. If you find
             beyond a reasonable doubt that one person committed the
             offense charged and the other aided and abetted the commission
             of such crime, both would be guilty.

[¶21.]       We have previously clarified our standard of review for jury

instructions as follows:

             A trial court has discretion in the wording and arrangement of
             its jury instructions, and therefore we generally review a trial
             court’s decision to grant or deny a particular instruction under
             the abuse of discretion standard. However, no court has
             discretion to give incorrect, misleading, conflicting, or confusing
             instructions: to do so constitutes reversible error if it is shown
             not only that the instructions were erroneous, but also that they
             were prejudicial.

State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125 (quoting State v. Packed,

2007 S.D. 75, ¶ 17, 736 N.W.2d 851, 856). “Erroneous instructions are prejudicial


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. . . when in all probability they produced some effect upon the verdict and were

harmful to the substantial rights of a party.” Id. (quoting Papke v. Harbert, 2007

S.D. 87, ¶ 13, 738 N.W.2d 510, 515).

[¶22.]       Harris first argues that the aiding and abetting instruction was

improperly given because the indictment did not charge an aiding and abetting

theory. This argument is without merit. “It is settled law that a conviction may be

supported by proof that the defendant was either an aider or abettor even though

the charging instrument charged him as a principal.” State v. Miller, 429 N.W.2d

26, 41 (S.D. 1988) (quoting State v. Johnson, 272 N.W.2d 304, 305 (S.D. 1978)).

[¶23.]       We must next consider whether the instruction on aiding and abetting

was supported by the evidence presented at trial. A trial court should instruct the

jury on issues “supported by competent evidence in the record[.]” Johnson v.

Armfield, 2003 S.D. 134, ¶ 7, 672 N.W.2d 478, 481 (quoting Artz v. Meyers, 1999

S.D. 156, ¶ 8, 603 N.W.2d 532, 534). In determining whether the instruction was

proper, the State’s claim that the evidence was sufficient to support an aiding and

abetting instruction is viewed “in the light most favorable to upholding the verdict.”

See id. (quoting Parker v. Casa Del Rey, 2002 S.D. 29, ¶ 5, 641 N.W.2d 112, 115).

[¶24.]       Evidence relevant to an aiding and abetting theory was presented at

trial. The informant called Harris to arrange both controlled buys. As to the first

transaction, Harris actually accepted money from the informant and handed the

crack cocaine to the informant. On the second controlled buy, Harris only set up the

meeting between Tara and the informant in which the exchange of drugs and

money took place. The evidence presented at trial therefore supported the theory


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that Harris, if not the principal, facilitated the commission of the crime. On these

facts, we cannot conclude that the trial court abused its discretion by providing the

jury with an aiding and abetting instruction.

[¶25.]       Affirmed.

[¶26.]       GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,

and ZINTER, Justices, concur.




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