State v. Lang ( 1984 )

HENDERSON, Justice

(dissenting).

Did defendant have a fair trial? Believing that he did not, I would reverse this conviction and accordingly dissent.

1. There was no consolidation of indictments; there was no motion for consolidation; there was no hearing concerning consolidation of indictments; there was no order entered by the court of consolidation. It behooved the state to so move and it did not. It behooved the court to ensure a fair trial. SDCL 23A-11-1 governs. Under this statute, separate indictments or infor-mations should not be joined for trial without an order of the court. In this case, defendant was prejudiced by the consolidated trial. How could defense counsel ask for relief from prejudicial joinder under SDCL 23A-11-2 unless there was joinder in the first instance? Defendant presented different alibi witnesses on different indictments creating an inherent risk that if the jury did not believe one alibi witness, it would tend to discredit all the alibi testimony. Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964), expressed why accused is possibly prejudiced by a joint trial of offenses:

(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one.

Judicial expediency. Volume. Crises in the courts. It covers the nation like a blanket. It forecloses preparation. It stymies academic input. It stultifies the healthy growth of law. It rips away at considered reflection. Sweet judicial expediency. It tears apart judicial fairness like a lion’s paws rip a killed gazelle. It is public enemy # 1 to those who elevate qualitative analysis over quantitative analysis. See my dissent in State v. No Heart, 353 N.W.2d 43, 49 (1984), wherein I elevated the fair administration of justice over efficiency and economy in the courts.

2. There was an admitted lack of preparation before trial evidenced by defense counsel’s motion for a continuance (summarily denied) stated on the record as follows:

I had full intent yesterday of interviewing all the witnesses. We had five of them. I don’t even know what their full names are. He can’t advise me as to what their full names are. I don’t know where they are and I don’t know who they are.

This was less than twenty-four hours before the trial commenced. Defendant had previously been granted a continuance, but that does not mean that he should not have been entitled to another continuance. Facing four felonies to defend, his attorney openly confessed that he was not ready to go to trial. What confidence must have abound in the defense camp. We are here concerned with a ten-year prison sentence and 3 two-year prison sentences. A continuance of this case would have been in the best interests of justice. It would not have been in the best interests of expediency or the court calendar. It would not have been in the best interests of statistics in the Unified Judicial System of the State of South Dakota. Accordingly, given a confession such as this by court-appointed counsel, the trial court should have granted a continuance and I would hold that there was an abuse of discretion.

3. The sheriff took the stand (a well-respected man in the county) and testified to the content of three tapes. For what purposes? The state calls it “cumulative testimony” and therefore harmless. The sheriff was permitted, through the use of notes, to testify, and these notes, he admitted, came from the tapes. Objections that this was not the best evidence were promptly made and promptly overruled. The questions propounded to the sheriff went to the contents of the tapes — not to the content of the conversations. True, the three tapes were played to the jury and were difficult to discern but the jury is the finder of the fact, not the sheriff, and the jury should have found the facts as to what was actually said in the tapes. Thus, the questions were objectionable and a violation of the best evidence rule. Gonzales-Benitez, cited by the majority opinion, was relied upon heavily by the appellant in his brief and was not listed by the State in its table of authorities. Those who have the academic interest can read this case, as well as Rose, also cited by the majority and appellant in support of his appeal. The sheriff might well have monitored the conversations (in the three tapes) as they occurred and as they were taped. This does not give him the right to interpret what the tapes reveal. Therefore, I read these cases to support defendant’s position and not the position of the State of South Dakota. The best evidence rule was codified in SDCL 19-18-2. This statute requires proof of contents of a recording by production of the original. Although the trial court knew the original tapes were in court and available, it overruled objections of the defense and permitted the sheriff to testify. This was error. I am dismayed that the Rules of Evidence, through a series of decisions in this Court, have been seriously eroded. These rules have evolved for the purposes of establishing truth and they are not just technical flim-flam to be discarded at will. See my dissents in State v. Smith, 353 N.W.2d 338, 345 (S.D.1984); State v. Wedemann, 339 N.W.2d 112, 116 (S.D.1983); State v. Iron Shell, 336 N.W.2d 372, 375 (S.D.1983). For hearsay is simply not admissible as evidence unless it is found to fall within certain exceptions. See SDCL 19-16-4 for the general rule and the exceptions in SDCL 19-16-3, SDCL 19-16-5 through SDCL 19-16-38.

4. Michael Sanders, a confidential informant, testified in this case. Notwithstanding, the trial court permitted the sheriff to testify concerning contact that he, the sheriff, had with Michael Sanders. This testimony, before the jury, and permitted over objection, was that the informant told the sheriff that Mike (Lang) had marijuana to sell. Defense counsel interposed an objection on the grounds of hearsay. What is hearsay? SDCL 19-16-1(3) defines hearsay: “Hearsay is a statement, other than by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Obviously, the sheriffs testimony was not offered simply to prove that this statement was made; no, it was offered to prove the truth of its contents, namely, that Mike Lang had marijuana to sell.

Is the hearsay rule a reality or is it nothing but a legal ghost of the past? Is the rule so rife with exceptions and holes that it is simply meaningless in modern-day decisions? Is it still entitled to some degree of sanctity in the law? Shall we, or shall we not, tolerate convictions and prison sentences based upon hearsay evidence? South Dakota, appellee, would have us believe that appellant is as guilty as A1 Capone. But still, were this true, he would be entitled to the protection and correct exposition of the hearsay evidence rule. Defendant did not have a fair trial and I cannot concur in the decision of my learned brothers on this Court. I would reverse and remand for a new trial.