#24077, #24088-a-RWS
2007 SD 20
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
NATHANIEL CRAWFORD, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JOSEPH NEILES
Judge
* * * *
LAWRENCE E. LONG
Attorney General
SHERRI SUNDEM WALD
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JOHN R. HINRICHS
Office of the Minnehaha
County Public Defender
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
* * * *
CONSIDERED ON BRIEFS
ON JANUARY 8, 2007
OPINION FILED 02/28/07
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SABERS, Justice
[¶1.] Nathaniel Crawford (Crawford) was found guilty by a jury of aiding
and abetting distribution of a controlled substance. He was acquitted on possession
of a controlled substance. After the trial court sentenced him to eight years in the
penitentiary, he appealed. We affirm.
FACTS
[¶2.] In 2004, there was a concerted effort by local law enforcement officers
and Division of Criminal Investigation (DCI) agents to stop drug activity in
southeastern South Dakota. This case derives from an investigation of drug activity
in and around Yankton, SD.
[¶3.] DCI was using a confidential informant named Robert Jarmon
(Jarmon). On March 22 and 23, 2004, the officers observed a woman named “Angel”
sell marijuana to Jarmon during two preplanned, controlled buys. During these two
“buys,” a man named Nate Steele (Steele) was with Angel.
[¶4.] A week later, Jarmon arranged to buy marijuana and
methamphetamine from Angel. Law enforcement officers observed Angel and a
man, subsequently identified as Marco Antonio Garcia (Garcia), arrive in a four-
door Buick and sell the drugs to Jarmon. After running the license plates, the
officers discovered the Buick belonged to Crawford and his girlfriend, Tina Lovaas.
[¶5.] Officers showed Jarmon a photograph of Crawford’s driver’s license
and Jarmon incorrectly identified Crawford as the man with Angel during the latest
buy. The officers did not know who Angel was, but suspected Angeline Crissey
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(Crissey). Officers showed Jarmon a photo of Crissey and he incorrectly identified
Crissey as the woman from whom he bought drugs.
[¶6.] Officers interviewed Steele, who was with Angel on the two initial
buys. Steele initially denied he knew Angel’s last name. After subsequent
investigation revealed he was involved with Angel, he confessed that her real name
was Nina Angelina Augusta Huff (Angel).
[¶7.] At the time, Angel was on probation for theft of government funds.
She was living in a halfway house after she suffered a relapse while on probation. 1
Angel’s probation officer, Mareen Jensen, arranged a meeting between Huff and
officers investigating the drug sales with Jarmon.
[¶8.] During that interview, Angel admitted she and Garcia sold drugs to
Jarmon. She also told officers that she and Garcia were short of drugs to sell
Jarmon and Crawford supplied some methamphetamine for them to sell. Angel
alleged Crawford let her and Garcia borrow his Buick to travel from Sioux Falls to
Yankton to sell the drugs.
[¶9.] Based on this information, Crawford was arrested. He was indicted on
one count of aiding and abetting distribution of a controlled substance
(methamphetamine) and one count of possession of a controlled substance
(methamphetamine). A habitual offender information was also filed.
[¶10.] During trial, Crawford called Garcia to testify on his behalf. Garcia
exercised his Fifth Amendment privilege against self-incrimination and refused to
1. Angel testified she had gone out with friends to drink and smoke pot. She
informed her probation officer who put her in the halfway house.
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answer any questions regarding the Yankton drug investigation or Crawford’s
alleged involvement in the case. Crawford then sought to introduce Garcia’s
statements made during a phone interview with Mary Baker, a paralegal working
for Crawford’s counsel, through exceptions to the hearsay rule, SDCL 19-16-32
(Rule 804(b)(3)) and SDCL 19-16-35 (Rule 804(b)(6)). The circuit court found Garcia
was unavailable and in the interest of justice he allowed Baker to testify to some,
but not all of Garcia’s prior statements.
[¶11.] After closing arguments, Crawford made an oral motion for a mistrial.
He alleged the State engaged in prosecutorial misconduct and its comments during
closing and rebuttal “exceed[ed] the evidence that had been presented. . . .” The
trial court found that “there were no errors made during the closing arguments that
would rise to a level that would cause the [c]ourt to declare a mistrial” and denied
the motion.
[¶12.] The jury convicted Crawford of one count of aiding and abetting
distribution of a controlled substance, but acquitted him of one count of possession
of a controlled substance. After the verdict, Crawford pleaded guilty to being a
habitual offender. The trial judge sentenced him to eight years in the penitentiary.
Crawford appeals and raises the following issues:
1. Whether the trial court violated Crawford’s right to compulsory
process by excluding some of Garcia’s out of court statements.
2. Whether the State committed prosecutorial misconduct during
closing argument and the trial court erred in denying Crawford’s
motion for a mistrial.
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STANDARD OF REVIEW
[¶13.] “The trial court’s evidentiary rulings are presumed to be correct.”
State v. Boston, 2003 SD 71, ¶14, 665 NW2d 100, 105. We review evidentiary
rulings for abuse of discretion. Id. (citing State v. Goodroad, 1997 SD 46, ¶9, 563
NW2d 126, 129) (additional citations omitted). The defendant must first
demonstrate error and then show that error was prejudicial. Id. (citing State ex
rel. Dep’t of Transp. v. Spiry, 1996 SD 14, ¶11, 543 NW2d 260, 263) (quoting Shaffer
v. Honeywell, Inc., 249 NW2d 251, 258) (SD 1976)). The test for abuse of discretion
is “whether we believe a judicial mind, in view of the law and the circumstances,
could reasonably have reached that conclusion.” Huber v. Dep’t of Pub. Safety, 2006
SD 96, ¶22, 724 NW2d 175, 180 (additional citation omitted).
[¶14.] The trial court has the discretion to determine whether a motion for a
new trial should be granted. State v. Perovich, 2001 SD 96, ¶11, 632 NW2d 12, 15
(additional citations omitted). This Court will not disturb a trial court’s denial of a
mistrial unless there is a clear showing of abuse of discretion. Id.
[¶15.] 1. Whether the trial court violated Crawford’s right to
compulsory process by excluding some of Garcia’s out of
court statements.
[¶16.] The right of compulsory process is guaranteed by the Sixth
Amendment to the United States Constitution. The Sixth Amendment provides, in
relevant part, “In all criminal prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor. . . .” The South
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Dakota Constitution guarantees the same right in Article VI, section 7. 2 Crawford
argues that the trial court violated his right of compulsory process by prohibiting
Baker from testifying to some of Garcia’s out of court statements. However, no
right is limitless, and it “may . . . bow to accommodate other legitimate interests in
the criminal trial process.” Chambers v. Mississippi, 410 US 284, 295, 93 SCt 1038,
1046, 35 LEd2d 297 (1973) (additional citation omitted). See also State v. Dale, 439
NW2d 98, 104 (SD 1989). Almost one hundred years ago, this Court recognized that
“[a defendant] is entitled, under reasonable regulations, to process for witnesses. . .
.” State v. Wilcox, 21 SD 532, 114 NW 687 (1908) (emphasis added).
[¶17.] Crawford cites Washington v. Texas in support of his argument that
his right to compulsory process was violated. 388 US 14, 23, 87 SCt 1920, 1925, 18
LE2d 1019 (1967). In Washington, the United States Supreme Court decided the
defendant’s right to compulsory process was denied because the State arbitrarily
denied him the right to have a witness testify who had relevant and material
testimony. Id. See United States v. Valenzuela-Bernal, 458 US 858, 872-73, 102
SCt 3440, 3449-50, 73 LE2d 1193 (1982) (the government may not deport witnesses
who have material and relevant testimony); Fountaine v. State, 460 So2d 553, 555
(FlaDistCtApp2d 1984) (recognizing the right to compulsory process only requires
that the government may not prevent an otherwise willing defense witness from
testifying), petition for review denied, 464 So2d 554 (Fla 1985).
2. The South Dakota Constitution provides, in relevant part, “In all criminal
prosecutions the accused shall have the right . . . to have compulsory process
served for obtaining witnesses in his behalf . . . .” Art. VI, § 7.
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[¶18.] This case is distinguishable from Washington. 3 In this case, the State
did not prevent the defendant from calling the witness. Indeed, Crawford did call
Garcia to the stand. Garcia chose to exercise his Fifth Amendment privilege
against self-incrimination. Crawford’s “right to compulsory process does not include
the right to compel a witness to waive his or her Fifth Amendment privilege against
self incrimination.” See United States v. Robaina, 39 F3d 858, 862 (8thCir 1994)
(citing Kastigar v. United States, 406 US 441, 444, 92 SCt 1653, 1656, 32 LE2d 212
(1972)).
[¶19.] The Fifth Circuit has held that a defendant’s right to compulsory
process is fulfilled when the witness is physically present in court. United States v.
Griffin, 66 F3d 68, 70 (5thCir 1995) (citing United States v. Lacouture, 495 F2d
1237, 1240 (5thCir 1974), cert denied, 419 US 1053, 95 SCt 631, 42 LEd2d 648
(1974)). The court explained,
The Sixth Amendment requires that a witness be brought
to court, but it does not require that he take the stand
after refusing to testify. Once a witness appears in court
and refuses to testify, a defendant’s compulsory process
rights are exhausted. It is irrelevant whether the
witness’s refusal is grounded in a valid Fifth Amendment
privilege, an invalid privilege, or something else entirely.
The defendants’ Sixth Amendment rights were satisfied
as soon as the [witness] appeared in court and refused to
testify . . . .
3. Crawford also argues our decision in State v. Dale demonstrates his right to
compulsory process was violated. 439 NW2d 98 (SD 1989). There, the court
refused to subpoena some of Dale’s witnesses and we affirmed because the
witnesses did not have material and favorable testimony for the defense. Id.
at 104-05. This case is also distinguishable from Dale because neither the
State nor the circuit court prevented any of Crawford’s witnesses from
testifying.
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Id., 66 F3d at 70 4 (internal citations omitted). In this case, Crawford’s right to
compulsory process was fulfilled when the circuit court issued a subpoena for Garcia
and Garcia was physically available in the courtroom. The fact that Garcia invoked
his Fifth Amendment right does not violate Crawford’s right to compulsory process.
“[A]n accused’s right to compulsory process must give way to the witness’ Fifth
Amendment privilege. . . .” United States v. Follin, 979 F2d 369, 374 (5thCir 1992)
(quoting United States v. Boyett, 923 F2d 378, 379 (5thCir), cert denied, 502 US
809, 112 SCt 53, 116 LEd2d 30 (1991). See State v. Montgomery, 467 So2d 387, 392
n6 (FlaDistCtApp3d 1985).
[¶20.] Finally, the fact that the trial court excluded some of the statements
because they did not fall within an exception does not create a compulsory process
violation. As previously stated, the right to compulsory process is not absolute. “A
defendant ‘must comply with established rules of procedure and evidence designed
to assure both fairness and reliability. . . .’” Hawkins v. Costello, 460 F3d 238, 243
(2dCir 2006) (quoting Chambers, 410 US at 302, 93 SCt at 1049, 35 LEd2d 297).
Crawford “does not have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of evidence.” See id.
(quoting Taylor v. Illinois, 484 US 400, 410, 108 SCt 646, 98 LEd2d 798 (1988)). See
also Wilcox, 21 SD at 534-36, 114 NW at 688 (finding a defendant had the right to
4. Several other jurisdictions have held the same way. See also United States v.
Gloria, 494 F2d 478, 480 (5thCir 1974), cert denied, 419 US 995, 95 SCt 306,
42 LEd2d 267 (1974); United States v. Johnson, 488 F2d 1206, 1211 (1stCir
1973); United States v. Beye, 445 F2d 1037, 1038 (9thCir 1971); Bowles v.
United States, 439 F2d 536, 541-42 (DCCir 1970) (en banc), cert denied, 401
US 995, 91 SCt 1240, 28 LEd2d 533 (1971).
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process subject to reasonable regulations). 5 In order for Crawford to get the
statements admitted, he must demonstrate the trial court abused its discretion in
excluding the statements and the error prejudiced him. See Boston, 2003 SD 71,
¶14, 665 NW2d at 105 (additional citations omitted).
[¶21.] Crawford attempts to cast his argument as a constitutional violation in
order to obtain a de novo review of the trial court’s evidentiary decision. However,
there was not a compulsory process violation. Therefore, the standard of review for
the evidentiary issue is abuse of discretion. See id.
[¶22.] We have considered the evidentiary and remaining issues and find
them to be without merit. Therefore, we affirm.
[¶23.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
MEIERHENRY, Justices, concur.
5. Crawford interprets “reasonable regulation” to mean the rules of evidence
can be used to procure testimony of an unavailable declarant in order to
protect his right to compulsory process. This is incorrect for two reasons.
First, as illustrated above, the right to compulsory process ends upon
compelling the witness to be physically available in the court and the rules of
evidence are not a mechanism that fulfills the right to compulsory process.
Second, the rules of evidence are not “reasonable regulations” within the
meaning of Wilcox. We interpret “under reasonable regulation” to mean the
right of compulsory process is subject to reasonable regulations. For example,
if the witness is out of state and not subject to the state’s subpoena power (as
was the case in Wilcox) then the defendant’s right to compulsory process is
restricted under the reasonable regulation of the state’s subpoena power.
Wilcox, 21 SD at 534-36, 114 NW at 688 (“State process cannot operate
beyond state boundaries. So the absolute right under discussion does not
exist with respect to a witness whose attendance cannot be compelled”).
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