State v. Wilson

#24578-rev & rem-SLZ

2008 SD 13
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

CHAD JOHN WILSON and
JOHN JAMES MIDMORE, Defendants and Appellees.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
CUSTER COUNTY, SOUTH DAKOTA

* * * *
HONORABLE JOHN J. DELANEY
Judge

* * * *
LAWRENCE E. LONG
Attorney General

CRAIG M. EICHSTADT
Deputy Attorney General
Pierre, South Dakota
and
TRACY L. KELLEY
Custer County State’s Attorney
Custer, South Dakota
and
MICHAEL R. MOORE
JEFFREY M. BANKS
Special Custer County Deputy State’s Attorneys
Huron, South Dakota Attorneys for appellant.

ROBERT VAN NORMAN of
Nooney Solay & Van Norman
Rapid City, South Dakota Attorneys for appellees.

* * * *
ARGUED JANUARY 8, 2008
OPINION FILED 02/13/08
#24578

ZINTER, Justice

[¶1.] This is an intermediate appeal from circuit court discovery proceedings

in a criminal case. The circuit court was presented with the procedural question of

how to protect work product and theories of the defense in contested proceedings

involving defense requests for scientific testing of physical evidence. In some of the

proceedings, the circuit court considered ex parte motions, briefs and affidavits. On

occasion, the circuit court also conducted ex parte hearings, including one in which

the court received expert testimony. Because we conclude that the circuit court, in

attempting to balance the rights of all parties, nevertheless failed to follow

statutory procedural requirements, we reverse and remand.

I.

[¶2.] On August 8, 2006, five people were shot at Legion Lake Lodge in

Custer State Park during the Sturgis Motorcycle Rally. The victims were allegedly

members of the Outlaw Motorcycle Club. Numerous witnesses identified the

perpetrator as a passenger in a white Ford 350 pickup truck that was parked in the

Lodge’s parking lot. The pickup was found abandoned hours later on a logging road

not far from the Lodge. Later that evening, John James Midmore and Chad John

Wilson (Defendants) were arrested for the shootings. Authorities searched the

pickup and the scene of the shooting and located, among other things, a .40 caliber

gun magazine, three .40 caliber semiautomatic pistols, and ammunition. During

the subsequent investigation, authorities determined that Wilson leased the pickup,

and that Midmore and Wilson were associated with the Hell’s Angels Motorcycle

Club.

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[¶3.] Beginning in November of 2006, the prosecution and defense began

having difficulty arranging the scientific testing of physical evidence, in particular,

the magazine and the pickup. In the course of those disputes, the circuit court and

the defense began conducting ex parte communications through sealed motions

(with sealed exhibits and affidavits of counsel), sealed briefs, and ex parte hearings,

one of which involved court consideration of the Defendants’ experts’ testimony.

According to the State, since September of 2006, the court conducted seven

hearings, and the court engaged in ex parte communications in four of them. The

issues discussed included joint representation of the Defendants,

prosecution/defense disputes over scientific testing of the physical evidence, and

venue of a potential trial. Although the issue in this appeal is limited to a sealed

motion, brief and affidavits relating to scientific testing of the pickup, a

chronological history of a number of the ex parte motions, affidavits, and hearings is

required to provide context.

[¶4.] The first ex parte communication, in November of 2006, occurred in a

hearing on the issue of joint representation of the Defendants. In an open hearing

the circuit court stated, “I am going to have to address issues with counsel, which if

disclosed to the State or anybody else, would violate their constitutional right to

silence and their constitutional rights. I don’t know any other way to do it unless [I]

sneak back to my chambers and do it. . . . I understand people may have uproars

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about it, but I have no other choice at this time.” The State objected 1 and

attempted to relate evidence that it thought would create irreconcilable conflicts of

interest, yet the circuit court resolved the matter in an ex parte hearing without

participation by the State. In hindsight, a review of that transcript reflects that

virtually everything said by the court, counsel, and the Defendants could have been

disclosed in open court. 2

[¶5.] Shortly thereafter, the defense, in the open portion of that hearing,

requested to be present when the State conducted tests on the magazine of one of

the .40 caliber semiautomatic pistols, arguing that if any fingerprint testing was

performed on the magazine, it would destroy evidence they desired to obtain. When

1. In response to this objection, both defense counsel and the court
indicated that there would be no legal arguments made concerning the
conflict of interest and they would only be discussing factual matters.
Nevertheless, during the ex parte hearing, out-of-state defense counsel
made disparaging remarks about the viability of some of the State’s
legal issues. The same defense counsel also informed the court that he
did not agree with the State’s theory of the case set forth at the grand
jury proceedings.

2. We also observe that after the hearing reconvened in public, the State
renewed its objection indicating that it was aware of evidence that it felt
would create an inherent conflict within the trial setting, and that joint
representation would be impossible without raising those conflicts. Although
the circuit court responded that it was not the State’s “problem,” that is not
the case. The State has a right to provide input to ensure that a fair and
impartial trial was held. The State’s obligation is not limited to the role of an
advocate. The State also has a duty to ensure a fair trial. State v.
Brandenburg, 344 NW2d 702, 705 (SD 1984). See also United States v.
Bagley, 473 US 667, 675 n6, 105 SCt 3375, 3380, 87 LEd2d 481 (1985)
(providing, “the prosecutor’s role transcends that of an adversary: he ‘is the
representative not of an ordinary party to a controversy, but of a sovereignty .
. . whose interest . . . in a criminal prosecution is not that it shall win a case,
but that justice shall be done.’”) (citing Berger v. United States, 295 US 78,
88, 55 SCt 629, 633, 79 LEd 1314 (1935)).

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the circuit court requested the defense to explain why the State’s testing would

impair their ability to collect evidence from the magazine, the defense responded, “I

can tell you in camera,” and, “I would be happy to file a document under seal setting

forth what we are concerned about.” The circuit court responded, “I would

appreciate if you would do that.”

[¶6.] The defense responded in February 2007, by filing an ex parte motion

partly under seal for an order to allow its experts to be present during testing of the

magazine. In a section that was not sealed, Defendants alleged that the State’s

Attorney made several agreements that would have allowed the presence of a

defense expert, but the State subsequently breached those representations and

agreements. The defense also argued that the State’s testing altered some of the

evidence such that defense testing could be compromised. Therefore, the defense

requested that it be allowed to be present before any future testing.

[¶7.] On February 23, 2007, the circuit court, Defendants, and defense

counsel participated in an ex parte hearing on this motion. The defense reiterated

its request to be present at any future testing, and further requested that it be

allowed to do independent testing before the State continued its tests. The defense

also requested the court to order the State to answer a list of questions regarding

the State’s evidence testing. Finally, those present engaged in a substantive

discussion of change of venue. Notwithstanding the Defendants’ argument on

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appeal, our review of the record reflects that the substantive ex parte discussion on

venue was not “limited” and “unremarkable.” 3

[¶8.] On March 14, 2007, the circuit court granted Defendants’ February ex

parte motion for an order allowing its experts to be present during testing on the

magazine. The court’s order required the State to refrain from further testing on

the magazine and allowed Defendants’ experts to conduct independent testing. The

order also required the State to provide an area at the State Crime Lab for the

Defendants’ experts. Although the State’s experts were not allowed to dispute

whether or not the defense’s testing would alter the evidence for the State’s testing

purposes, the circuit court assured the State that, based on the judge’s personal

experience with handguns, the defense’s testing of the magazine would not affect

any testing the State wished to perform.

[¶9.] The State filed a motion to reconsider, a motion for stay of order, and a

motion for a Daubert hearing. These motions were denied without hearing.

Thereafter, on March 22, 2007, the State filed a petition for an intermediate appeal

with this Court challenging the ex parte motion and hearing. This Court denied the

State’s petition, expressing no opinion on the merits.

3. The defense and the court discussed the option of trying the case in Rapid
City instead of Custer, South Dakota. The court informed the defense that
there was a larger jury pool in Rapid City and that jurors were more likely to
attend jury duty. The court also discussed the possibility of the defense
losing jurors in Custer due to the elderly pool and people taking vacation.
The court elaborated on potential juror numbers under various scenarios, and
although the circuit court stated that it would give the State a chance to be
heard later, it also indicated how it would likely rule on a change of venue
motion. We observe nothing in the transcript that required these ex parte
communications.

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[¶10.] On May 14, 2007, the defense filed another ex parte motion (not under

seal) to bring a gun magazine into the courthouse “for purposes of demonstration of

disassembling a .40 caliber gun magazine[.]” The circuit court granted this motion,

and on May 15, 2007, proceeded with another ex parte hearing. At this hearing, the

court, defense witnesses, and defense counsel discussed in great detail how to

disassemble the magazine and whether or not it would destroy evidence. An expert

introduced the “demonstrative magazine” and showed the court how the defense’s

experts proposed to disassemble the actual magazine. After this demonstration, the

court allowed the defense to proceed with testing before the State, stating,

At this stage of the game, the Court has observed the
disassembly of a magazine that is represented to be of the same
kind and nature as that in question. . . . The court sees no
reasonably conceivable way in which the magazine can be
damaged or altered without that alteration being apparent,
particularly if the disassembly and testing and reconstruction
is done under the eye of a court-appointed monitor of some sort
yet to be determined. The magazine itself is an exercise in
simplicity and with proper photographing by the [S]tate before
the test is done, the ability of the defense to run the test and to
alter the magazine, should such a thing happen either by intent
or accident, would be virtually - - as near as the court can tell
impossible to hide. So I don’t see the difficulty with that.

[¶11.] On June 21, 2007, the defense filed another ex parte motion (this time

under seal) to test the pickup outside the presence of the State. In this motion, the

defense disclosed the testing it sought to perform on the pickup. In support of the

motion, the defense filed sealed ex parte affidavits from Defendants’ attorneys

describing their view of certain communications and disputes between the defense

and the State regarding access to the pickup for testing. They alleged that the

State had failed to produce evidence, that the State was making demands upon the

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defense as a prerequisite to defense testing, and that the State had retracted prior

agreements to make the pickup available. The defense finally disclosed a theory of

its case that would support testing. On this occasion, the circuit court did not

conduct an ex parte hearing, nor did it conduct any hearing at all. In fact, the State

was not notified of the defense’s motion until June 27, 2007, six days after the

defense submitted it to the court. Affording no opportunity for the State to respond

with a reply brief or a hearing, the circuit court granted Defendants’ motion on

June 28.

[¶12.] The court’s order permits the defense and its experts to examine the

pickup, collect evidence, and report the defense testing under seal to the court. The

order further requires one of the attorneys for the Defendants to be present at all

stages of the defense testing to record the tests conducted, the nature and extent of

any changes made to the vehicle or items removed, and to ensure that the integrity

of the vehicle is maintained in the same condition as when the Defendants first

begin their tests.

[¶13.] As a result of these latest proceedings regarding the pickup, the State

filed its second petition for an intermediate appeal, and this Court granted the

State’s petition. A jury trial is currently stayed. The State appeals the process by

which the circuit court considered and granted the defense’s motion concerning

scientific testing of the pickup; and specifically, whether the circuit court abused its

discretion in deciding this matter on a sealed, ex parte motion and ex parte

affidavits without any opportunity for the State to present its views.

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II.

[¶14.] This dispute involves application of criminal discovery statutes.

“Statutory interpretation is a question of law, reviewed de novo.” State v. Burdick,

2006 SD 23, ¶6, 712 NW2d 5, 7. Matters of a circuit court’s actions under discovery

statutes are reviewed under an abuse of discretion standard. Anderson v. Keller,

2007 SD 89, ¶5, 739 NW2d 35, 37.

III.

[¶15.] Because of the ex parte motion and lack of notice, the State indicates

that it is unaware whether the circuit court conducted any ex parte hearings related

to testing the pickup. Our review of the record provided indicates that the court did

not conduct any ex parte hearings on this motion. The court did, however, conduct

ex parte hearings regarding conflicts of interest, venue, discovery, and evidence

testing of the magazine. The State argues that ex parte hearings relating to these

issues were unauthorized. Because there has been a number of ex parte hearings,

and because oral argument reflected it is likely that the disputes over ex parte

hearings on testing have not been resolved, 4 we briefly address the issue.

[¶16.] Ex parte communications are generally prohibited. “A judge must not

independently investigate the facts in a case.” SD CODE OF JUDICIAL CONDUCT,

Canon 3B(7)(a) cmt, SDCL ch 16-2 app. (1993). The Code of Judicial Conduct only

allows a judge to engage in ex parte communications “that do not deal with

4. On July 5, 2007 – after the State filed this petition for intermediate appeal –
the defense submitted another motion and brief (partly under seal) for
discovery and discovery compliance.

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substantive matters or issues on the merits,” and then only “when expressly

authorized by law to do so.” Id., Canon 3(B)(7)(a),(e).

[¶17.] SDCL 23A-13-16 (Rule 16(d)(1)) 5 is the relevant statute that

authorizes ex parte discovery requests in certain limited circumstances. The statute

provides:

Upon a sufficient showing the court may at any time order that
the discovery or inspection be denied, restricted, or deferred, or
make such other order as is appropriate. Upon motion by a
party, the court may permit the party to make such showing, in
whole or in part, in the form of a written statement to be
inspected by the judge alone. If the court enters an order
granting relief following such ex parte showing, the entire text
of the party’s statement shall be sealed and preserved in the
records of the court to be made available to the appellate court
in the event of an appeal.

SDCL 23A-13-16 (emphasis added).

[¶18.] In our view, this statute requires a two-step process in which notice

and a hearing (with both sides present) must be provided before ex parte discovery

or testing is ordered and before ex parte evidence or affidavits are considered. As

the Federal Rules of Criminal Procedure Advisory Committee notes, the analogous

1975 federal provision requires that a trial court should first “determine whether an

ex parte proceeding is appropriate, bearing in mind that ex parte proceedings are

5. FED. R. CRIM. P. 16(d)(1) provides:

At any time the court may, for good cause, deny, restrict, or
defer discovery or inspection, or grant other appropriate relief.
The court may permit a party to show good cause by a written
statement that the court will inspect ex parte. If relief is
granted, the court must preserve the entire text of the party’s
statement under seal.

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disfavored and not to be encouraged.” FED. R. CRIM. PROC. 16(d)(1) advisory

committee’s note. Second, “it must determine whether a protective or modifying

order shall issue.” Id. (citing House Report No. 04-247). These procedural

requirements are found in the statutory language requiring a “sufficient showing”

for the discovery request. Although the statute permits the court to consider ex

parte evidence in making that showing, it does so only “upon motion,” which, absent

statutory authorization, requires a hearing. It is only after a motion and hearing

that ex parte evidence may be submitted to a court, and then, if the court permits it,

only in the form of a “written statement.” SDCL 23A-13-16. There is, however, no

authority to obtain discovery or resolve a discovery dispute entirely by sealed

motion, ex parte evidence, ex parte hearing, and the examination of witnesses with

only one party present. As we interpret the statute, the first step is to properly

notice a motion to obtain the requested discovery/testing, and if necessary, a motion

to present a sealed written statement in support of the discovery/testing sought.

The court must then conduct an open hearing in which both parties can argue

whether a sealed written statement may be submitted and ultimately whether the

moving party has made a “sufficient showing” to justify the discovery/testing

request.

[¶19.] In this case, the circuit court failed to follow this procedure regarding

the defense request to conduct scientific testing on the pickup. Instead -- absent

any noticed motion and hearing -- the court decided the ex parte motion on sealed

affidavits that included sealed arguments of defense counsel arguing their position

regarding the discovery dispute. Without a properly noticed motion and hearing,

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the court’s process allowed the defense to argue and resolve its discovery/testing

dispute entirely with ex parte evidence. This procedure violated SDCL 23A-13-16,

which plainly requires “a showing” and “a motion” to proceed in this manner.

Although the defense argues this is a reasonable interpretation of the statute, such

an interpretation would permit the prosecution as well as the defense to present

their views of discovery disputes, including supporting ex parte evidence, without

any notice or opportunity to be heard from the opposing party. 6 Such an

interpretation does not comport with basic understandings of due process.

6. Although the May 15, 2007 ex parte hearing regarding the magazine is
not an issue on appeal, the circuit court heard expert testimony on
testing the magazine. We previously stated that similar ex parte
communications are improper. In State v. McCrary, 2004 SD 18, ¶32,
676 NW2d 116, 125, a trial judge initiated an ex parte contact with the
victim’s therapist. At sentencing, the trial court made the following
statement: “I took it upon myself to call [the victim’s therapist] and
ask him one question and that was whether or not he had reason to
believe . . . that the child was not molested by the father and his
answer was no.” Id. In concluding that this constituted reversible
error, we stated:

Any contact by the trial court with a witness or potential
witness other than for scheduling or merely procedural matters
should be accompanied with full due process protection for both
parties such as advance notice and an opportunity to be heard
SDCL ch 16-2. Code of Judicial conduct, Canon 3B(7). “A judge
must not independently investigate the facts in a case.” Canon
3B(7)(a) cmt. Clearly this prohibition was not followed in this
case and we need not ponder the effect of this ex parte contact.
In O’Connor v. Leapley, 488 NW2d 421, 423 (SD 1992) we held
that “[i]f an ex parte communication is invited or initiated by
the judge, no prejudice needs to be shown . . . Prejudice is
implicit in the judge’s invitation or initiation of an improper ex
parte communication.” (citing State v. Barker, 227 Neb 842, 420
NW2d 695, 699 (1988)).

Id.
(continued . . .)
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[¶20.] The defense, however, contends that the circuit court was authorized

to consider the ex parte motion and affidavits because of the following cumulative

factors: (1) the motion contained its theory of defense and work product, (2) the

defense and the State were engaged in a discovery dispute, (3) the defense was in a

hurry to move the case forward, and (4) Defendants had been in jail for a year.

[¶21.] We recognize that some theories of defense and work product are

protected from discovery. Nevertheless, under SDCL 23A-13-13 (Rule 16(b)(1)) and

23A-13-14 (Rule 16(b)(2)), 7 protection for scientific testing of physical evidence is

________________________
(. . . continued)

We also noted, “[a] judge simply cannot be both a judge and [an attorney]
searching out facts favorable to the [prosecution or defense] without
abandoning his or her judicial neutrality.” Id. ¶33, 676 NW2d at 125. SDCL
23A-13-16 does not provide an exception to this prohibition.

7. SDCL 23A-13-13 (Rule 16(b)(1)) provides, in relevant part:

If the defendant requests disclosure under § 23A-13-3 or 23A-
13-4, upon compliance with such request by the prosecuting
attorney, the defendant, on written request of the prosecuting
attorney, shall permit the prosecuting attorney to inspect and
copy or photograph any results or reports . . . of scientific tests
or experiments made in connection with the particular case, or
copies thereof, within the possession or control of the defendant,
which the defendant intends to introduce as evidence in chief at
the trial or which were prepared by a witness whom the
defendant intends to call at the trial when the results or reports
relate to his testimony.

(Emphasis added.)

SDCL 23A-13-14 (Rule 16(b)(2)) provides:

Except as to scientific or medical reports, § 23A-13-12 or 23A-13-
13 does not authorize the discovery or inspection of reports,
memoranda, or other internal defense documents made by the
(continued . . .)
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limited if it will be used in the defendant’s case-in-chief at trial or presented

through witness testimony. SDCL 23A-13-13 provides that “the State may discover

results of examinations and scientific tests the defendant ‘intends to introduce as

evidence in chief at the trial or which were prepared by a witness whom the

defendant intends to call at the trial when the results or reports relate to his

________________________
(. . . continued)
defendant, or his attorneys or agents in connection with the
investigation or defense of the case, or of statements made by
the defendant, or by prosecution or defense witnesses, or by
prospective prosecution or defense witnesses, to the defendant,
his agents or attorneys.

(Emphasis added.)

SDCL 23A-13-3 (Rule 16(a)(1)(C)) provides:

Upon written request of the defendant, the prosecuting attorney shall
permit the defendant to inspect and copy or photograph books, papers,
documents, photographs, tangible objects, buildings, or places, or
copies or portions thereof, which are within the possession, custody, or
control of the prosecuting attorney and which are material to the
preparation of his defense or intended for use by the prosecuting
attorney as evidence in chief at the trial, or were obtained from or
belong to the defendant.

SDCL 23A-13-4 (Rule 16(a)(1)(D)) provides:

Upon written request of a defendant, the prosecuting attorney shall
permit a defendant to inspect and copy or photograph any results or
reports of physical or mental examinations, and of scientific tests or
experiments, or copies thereof, which are within the possession,
custody, or control of the prosecuting attorney, the existence of which
is known, or by the exercise of due diligence may become known, to the
prosecuting attorney, and which are material to the preparation of the
defense or are intended for use by a prosecuting attorney as evidence
in chief at the trial.

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testimony.’” 8 State v. Westerfield, 1997 SD 100, ¶15, 567 NW2d 863, 868.

Furthermore, in State v. Guthrie, we noted that “[p]hysical evidence, whether

exculpatory or inculpatory, cannot be withheld by a criminal defense attorney.”

2001 SD 89, ¶8, 631 NW2d 190, 194. 9 Therefore, contrary to the defense’s

assertion, the testing of the pickup does not necessarily implicate work product or

defense theory protections that would justify disregard of the notice and hearing

requirements of SDCL 23A-13-16. 10

[¶22.] Furthermore, the State argues that it does not seek the test results: it

only seeks to participate in proceedings regarding defense motions for testing of

physical, scientific evidence. Regardless of the merits of the State’s argument, the

Defendants’ reliance on defense theory and defense work product is premature and

misplaced until the parties’ conflicting claims regarding access to the pickup for

testing (and the evidence’s potential use at trial) are resolved in compliance with

the discovery statutes.

8. This does not mean, of course, that the defense may not move to limit or
restrict disclosure of defense theories or work product. Should the State seek
such evidence under SDCL 23A-13-13, and should the defense contend the
evidence involves defense theories or work product, the defense must move to
limit disclosure in accordance with SDCL 23A-13-16.

9. As we noted on remand in State v. Guthrie, 2002 SD 138, ¶12, 654 NW2d 201,
205, the trial proceedings involved a purported suicide note held in the
possession of defense counsel until the time of trial. The trial court found
that the defense attorney “tried to ‘ambush’ the State with this purposed
suicide note, hoping the State would not have time to refute the evidence.”

10. For this same reason, the defense’s argument that the information is
protected by attorney-client privilege under SDCL 19-13-3 fails.

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[¶23.] So also, the discovery dispute with the State did not justify

disregarding the procedural requirements of the statute. A party’s right to test

physical evidence does not authorize the acquisition of testing rights through ex

parte proceedings. At oral argument, the defense conceded that the dispute about

the pickup is simply about access to test it. While it argued that information from a

secret source justifies keeping the specific tests secret, the defense has presented no

reason why its request to test and its request to submit a secret source sealed

statement cannot be presented in an open hearing where both parties are afforded

an opportunity to be heard. And certainly, a hurry to engage in discovery, the

Defendants’ incarceration, and the State’s completion of its testing do not justify a

disregard of statutory procedural requirements.

[¶24.] The defense finally claims these proceedings are analogous to in

camera reviews of documents, citing United States v. Pelton, 578 F2d 701 (8thCir

1978), cert denied, 439 US 964, 99 SCt 451, 58 LEd2d 422 (1978) and United States

v. Felt, 491 FSupp 179 (DDC 1979). In Pelton, however, an in camera review of

documents occurred only after a hearing and a subsequently authorized request to

submit documents for in camera review in compliance with the federal equivalent

of SDCL 23A-13-16. Similarly, in Felt, the district court reviewed privileged

government documents in camera only after the defense had made a “showing of

necessity” to require the court to examine the documents in camera. 491 FSupp at

184. These cases do not stand for the proposition that the defense may obtain

discovery through ex parte motions and hearings without the motion and showing

required in SDCL 23A-13-16.

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[¶25.] We therefore conclude that the circuit court abused its discretion in

granting discovery on ex parte motions, briefs, affidavits, and hearings. The circuit

court’s order regarding testing of the pickup and sealing of the results is reversed

and remanded for further proceedings in accordance with the appropriate discovery

statutes.

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

MEIERHENRY, Justices, concur.

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