APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA HONORABLE JON R. ERICKSON Judge.
The opinion of the court was delivered by: Severson, Justice
[¶1.] The circuit court admitted into evidence certain statements to which Anthony Johnson objected. Johnson was subsequently found guilty of distribution of one ounce or less of marijuana and possession of two ounces or less of marijuana. He appeals. We affirm in part, reverse in part, and remand for retrial.
[¶2.] On April 3, 2007, Otto Lewis was at the Huron Police Department (Police Department) on a shoplifting charge.*fn1 Detective Jamie Gogolin previously used Lewis as an informant to aid in controlled drug purchases. When Lewis initially agreed to be an informant, he agreed to make four controlled buys for the Police Department. As of April 3, 2007, Lewis had only completed three of thebuys. Detective Gogolin reminded Lewis of their agreement. Lewis offered to purchase drugs from Anthony Johnson at 360 Frank Avenue Southeast in Huron, South Dakota.*fn2
[¶3.] Detective Gogolin and Lewis decided to complete the controlled buy on the same date. Detective Gogolin asked Lewis to call Johnson to see if he had any marijuana for sale. Because Lewis did not know whether Johnson had a phone or what his phone number was, Lewis offered to drive to Johnson's house to ask him.
Followed by Detective Gogolin, Lewis drove to the residence, went inside, and after a few minutes came out and returned to the Police Department. At the Police Department, Lewis stated that Johnson had marijuana to sell. Subsequently, Lewis's person and vehicle were searched for drugs and money, a wire transmitter was placed on him, and he was given $50*fn3 to purchase the marijuana.
[¶4.] Lewis returned to the address in question. Detective Gogolin, along with Chief Deputy Douglas Solem of the Beadle County Sheriff's Office, also returned and parked the patrol car around the corner, out of sight from the residence.*fn4 Neither Detective Gogolin nor Chief Deputy Solem could see inside the house. Detective Gogolin testified that while at the residence, no one other than Lewis entered or exited the house, nor did any vehicles stop at the residence. From the patrol car, Detective Gogolin and Chief Deputy Solem listened to and recorded the conversation transpiring in the residence. Three voices were identified on the recording, and Detective Gogolin testified they belonged to Lewis, Johnson, and Johnson's wife, Vanessa.*fn5 However, Detective Gogolin was uncertain as to whether anyone else was present in the house while Lewis was there.
[¶5.] The audio recording reveals no specific mention of drugs, marijuana or money during the conversation. There was no negotiation as to price or amount of marijuana. However, there was a question, by a male voice (later identified as Johnson's), about who "it" was for and a reference by the same voice about "it" being "juiced up a little." Detective Gogolin testified that, based on his experience and training, this was a reference to drugs. He further testified that participants in a drug transaction rarely discuss the events transpiring. Detective Gogolin explained, "If [a confidential informant] went into the place and walked up and introduced [himself] and said hi to the person [he was] buying from and [said] that [he was] there to get a controlled drug, the [seller] would be very suspicious that the [buyer] had a wire on and wouldn't sell to [him]."
[¶6.] After leaving the residence, Lewis returned to the Police Department and turned over a plastic bag containing 0.12 ounces of marijuana. He was debriefed by Detective Gogolin as to the specifics of what transpired within the residence. Lewis and his vehicle were searched a second time. No other drugs were discovered and the $50 was not found. Detective Gogolin testified he made no attempt to recover the $50 from Johnson or his residence. He explained this was normal because it allowed for the informants' identities to remain confidential so they could be used in the future.
[¶7.] On June 22, 2007, Johnson was charged with distribution of one ounce or less of marijuana in violation of SDCL 22-42-7, and possession of two ounces or less of marijuana in violation of SDCL 22-42-6. Prior to the motions hearing and jury trial, Lewis died from circumstances unrelated to this case. He was never subjected to cross-examination.
[¶8.] Johnson filed two motions in limine, a motion to suppress the evidence, and a motion to dismiss the case. These motions related to Lewis's conversations with Detective Gogolin after the alleged controlled buy and the audio recording of the conversation that transpired between Lewis, Johnson, and Vanessa. Johnson's motion to suppress the evidence and motion in limine were denied, but the motion to dismiss was taken under advisement. In its memorandum opinion, the circuit court suppressed the conversation between Lewis and Detective Gogolin after the alleged buy, but allowed the jury to hear the recorded conversation between Lewis, Johnson, and Vanessa.
[¶9.] The trial commenced on September 13, 2007. Immediately before voir dire, the court ruled that Detective Gogolin could testify that Lewis told him that he could purchase drugs from Johnson. During trial, Johnson stipulated that he and his family lived at the address in question, and that Lewis had returned from that address with a bag of marijuana, weighing 0.12 ounces. At the close of the State's case, the court denied Johnson's motion for a judgment of acquittal. The jury returned guilty verdicts. Johnson pleaded guilty to being a habitual offender and was sentenced to four years in prison for the distribution charge, and to time served for the possession charge. Johnson appeals, raising two issues:
1. Whether Johnson's Sixth Amendment right to confront witnesses was violated when statements were admitted into evidence even though the declarant was unavailable and Johnson had no opportunity to cross-examine him.
2. Whether there was sufficient evidence presented to prove beyond a reasonable doubt the elements of distribution of one ounce or less of marijuana and possession of marijuana.
[¶10.] We review an assertion of a violation of a constitutional right under the de novo standard of review. State v. Selalla, 2008 SD 3, ¶18, 744 NW2d 802, 807 (citation omitted). We review the ...