State v. Dominiack

FOSHEIM, Chief Justice,

dissenting.

The trial court clearly charged the jury that they could not convict on the uncorroborated testimony of an accomplice and that an inference is a deduction of fact that may reasonably be drawn from circumstantial evidence-as well as direct testimony. Inferences can be drawn from the total evidence that Minor was likely involved in various conspiracy combinations to distribute controlled substances: some with Miller, some with appellant, and some with both.

Officer A1 Hoff testified:

Q And what did Louie tell us on that occasion?
A The exact words, Mr. Rusch, I don’t remember. But there was talk of transactions on both sides. That Dennis had introduced — or had been selling drugs to David Minor, and David Minor had been selling drugs to Dennis and Louie.

Although the source of Officer Hoff’s testimony was an accomplice, and is therefore insufficient to convict appellant, it can be accepted as evidence that Minor may not be an accomplice as to the specific conspiracy *55here charged. Minor’s testimony also indicates a drug escapade between him and appellant with Miller’s participation in question.

When the facts, even though not in dispute, are susceptible of different inferences, the question of whether the witness is an accomplice is one for the jury. State v. Johnson, 81 S.D. 600, 139 N.W.2d 232 (1965). The jury could find by fair inferences, and by their verdict must have found, that while Minor’s acts happened to constitute a like offense, they did not arise from the same crime for which appellant is charged. State v. Fox, 313 N.W.2d 38 (S.D.1981). Of course, if Minor was not an accomplice to this particular offense, his testimony needed no corroboration. The trial court properly submitted the question of Minor’s accomplice status to the jury. The majority, however, sees that instruction as inadequate because it is not capped by adding that if the jury finds Minor to be an accomplice, then his testimony cannot be used to corroborate Miller’s testimony because the testimony of an accomplice cannot corroborate the testimony of another accomplice.

If an accomplice’s testimony cannot be used for corroboration, as the instructions clearly state, that means precisely what it says: it cannot corroborate the testimony of anyone, including another accomplice. Further, instruction to state the obvious was unnecessary.

Instructions in a criminal case must be considered as a whole in determining whether error was committed. State v. Poss, 298 N.W.2d 80 (S.D.1980); State v. Sonnenschein, 37 S.D. 585, 159 N.W. 101 (1916). A verdict will not be set aside because detached portions of the instruction do not completely or correctly state the law where it clearly appears that, taken as a whole, the charge correctly stated the law of the case and the jury could not have been misled. State v. Brennan, 2 S.D. 384, 50 N.W. 625 (1891). Taken as a whole these instructions reflect great effort to fairly charge the jury on the accomplice issue.

Officer Hoff also testified at trial that in the course of their drug investigation, they went to the Miller residence where they saw some drugs inside the residence. This observation was a probable cause basis for the search warrant. Considerable physical evidence was taken as a result of the search of the Miller residence which, by sheer quantity, prompts inferences of numerous conspiracies to distribute drugs and would therefore tend to strengthen, i.e. corroborate, both accomplices’ testimony.

State v. Fullerton Lumber Co., 35 S.D. 410, 152 N.W. 708 (1915), also involved criminal conspiracy. In that case it was also contended by appellant:

[T]hat there is no corroborating evidence in the record; that the witness Smith was an accomplice; that the conviction rests wholly upon his uncorroborated testimony; and that therefore the conviction cannot stand.

We held:

It is true that Smith participated in all the unlawful acts alleged in the indictment. He appears to have entered into the scheme willingly, if not enthusiastically. His testimony covered the entire transaction, and, in the absence of the statute, is sufficient, if competent, to support the verdict. It is only a question, then, as to whether there is any other evidence than Smith’s tending to connect the defendants with the commission of the offense charged. This does not mean evidence that would support the verdict without the testimony of the accomplice, but only such as supports or strengthens that of the accomplice. This question was discussed at length by this court in State v. Hicks, 6 S.D. 325, 60 N.W. 66, where the court stated the rule as follows:
‘... the corroborative evidence must be such as fairly leads to the inference that the testimony of the accomplice implicating the defendant in the commission of the offense is true. Some substantial evidence of this sort is essential, but its extent or degree of probative force is for the jury.... Its credibility must be strengthened. The requirement of the statute is not that *56such corroborating testimony shall prove or establish the defendant’s connection with the commission of the crime, but that it shall so “tend.” The law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evidence of the accomplice.’

Id. 152 N.W. at 715-16.

In Fullerton, we held that the inferences and circumstances “tending to corroborate the testimony of Smith was sufficient to warrant the jury in finding that there was other evidence tending to connect the defendants with the commission of the offense.” Id. In my opinion, there is sufficient corroborating evidence in this case to sustain the conviction, even though Minor was an accomplice. I would affirm.