#24203-rev&rem-PER CURIAM 

2007 SD 60

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

JAMES MARVIN LINDNER, 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 

KATIE L. HANSEN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

MICHAEL G. MILLER 

Minnehaha County Public Defender Attorneys for defendant 

Sioux Falls, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON APRIL 23, 2007 

 OPINION FILED 6/27/07 
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PER CURIAM 

[¶1.] James Lindner (Lindner) appeals his conviction for possession of a 

controlled substance and possession of marijuana contending the trial court erred in 

denying the admission of proffered testimony. We reverse and remand. 

FACTS 

[¶2.] On September 30, 2005, Lindner and Daniel Stricherz (Stricherz) went 

to a Wal-Mart store in Sioux Falls, South Dakota. Stricherz remained in the vehicle 

while Lindner went inside. Lindner met his stepson, Michael Richards (Richards), 

at the front of the store. Stricherz testified that the two got into an argument but 

Stricherz could not hear what was being said. Stricherz testified that Lindner 

yelled at Richards and took something from him and put it into his pocket. Lindner 

returned to the car and the two left. 

[¶3.] At this point Lindner and Stricherz went to Lindner's sister's house for 

a few minutes to see if she wanted to go with them to play bingo for their father's 

birthday. They left without her and went to play bingo at about 6:00 p.m. They 

played until approximately 10-10:30 p.m. After bingo they went to a casino in Sioux 

Falls. At approximately 2:30 a.m. law enforcement stopped Lindner's vehicle for a 

nonworking headlight, brake light and license plate light. 

[¶4.] Lindner did not have his driver's license or proof of insurance and was 

asked to step out of the vehicle. Lindner consented to a pat down search. The 

officer found a slender object in a front pocket that Lindner indicated was his work 

pen. When asked to remove the item, Lindner attempted to switch it into his other 

hand before the officer could see what it was and acted as though he could not find 
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the object. The officer grabbed Lindner and Lindner threw the object, which was a 

glass pipe, to the ground. After he was placed under arrest Lindner indicated he 

had more contraband in his pocket. The officer found a small plastic bag with 

marijuana and a pipe. A field test indicated that the pipe that was thrown to the 

ground contained methamphetamine residue. Lindner indicated to the officer these 

items belonged to his stepson, Richards.1

[¶5.] Lindner was charged with possession of a controlled drug or substance 

(methamphetamine), possession of marijuana and possession of drug paraphernalia. 

On the morning of trial, Lindner asked the trial court to grant Richards immunity if 

he testified because the State had refused to grant immunity. The trial court 

denied the request and appointed Richards an attorney to advise him of his rights 

because he was going to be called as a witness in the proceeding. During trial, from 

opening statement to closing argument, defense counsel argued that Lindner took 

the items away from his stepson. Richards was called as a witness at the trial. 

Richards invoked his Fifth Amendment privilege against self-incrimination in 

response to defense questions about the occurrence at Wal-Mart.2 

[¶6.] Richards was excused as a witness and a conference between counsel 

and the judge was held concerning the next witness. The jury was removed from 

the courtroom and the following exchange took place: 

1. The officer testified a UA was not conducted on Lindner following his arrest. 

2. Lindner did not testify at trial. The defendant's case consisted of his parents' 

testimony that he did play bingo for his father's birthday that evening along 

with Stricherz. Stricherz then testified as to what he observed at Wal-Mart. 

Richards was called and asked about that incident which resulted in the 

invocation of his Fifth Amendment privilege. 
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Defense counsel: At this point I would intend to call a 

paralegal from my office to testify under 804(a)(1). I 

believe this witness asserting his right to Fifth 

Amendment, that makes him an unavailable witness. 

And I would intend to call the paralegal to testify as to 

what he told her during their interview. 

The Court: [State], what's the--- 

State: Judge, the state is objecting, I guess, on a couple of 

grounds. One, the fact of the matter is the paralegal 

coming and testifying, the state is not going to be able to 

adequately cross-examine her. The witness in this 

particular case did come, did take the stand, exercised 

that Fifth Amendment right. And I believe based on that 

I have no—I have no means of adequately crossexamining a witness who is not the person who made 

statements. 

The Court: Well, I don't think that we read 804(a)(1) all 

by itself. We have to look at the other statutes as well. 

And specifically Rule 804(b)(6), and as it's codified in 

SDCL 19-16-35, which is the statute that deals with other 

hearsay being admissible if the declarant is unavailable. 

That statute requires there be advanced notice by the 

proponent to the adverse party sufficiently in advance of 

the trial or hearing to provide the adverse party with a 

fair opportunity to prepare to meet it. 

 

[Defense counsel], did you give notice to [State] before the 

trial that you anticipated that you might be needing to 

call the paralegal to testify as to these interviews that you 

had? 

Defense counsel: I did not, Your Honor. 

The Court: And that notice includes or is supposed to 

include your intent to offer the statement and the 

particulars of it, including the name and the address of 

the declarant. It also requires that the court has to do a 

weighing as to whether the statement is offered as a 

material fact; whether the statement is more probative on 

the point for which it is offered than any other evidence 

which the proponents can procure through reasonable 

efforts; and the general purpose of these rules and the 

interests of justice will best be served by admission of the 

statement into evidence. 
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And it also has to have equivalent circumstantial 

guarantees of trustworthiness consistent with the 

statutes as set forth in Sections 19-16-30 to 19-16-34. 

Those statutes deal with former testimony which would 

be testimony under oath, dying declarations, admissions 

against interest, statements about personal or family 

history and decedent's statements. I suppose that it's 

possible—and I don't know what that testimony is at this 

point—but I suppose it's possible that it might be in the 

nature of admissions against interest. I anticipate that's 

what that testimony would be, so under those 

circumstances it might arguably have that circumstantial 

guarantee of trustworthiness. But absent advance notice 

to state, I don't think I can allow that testimony.

Defense counsel: Thank you, Judge. 

Court: Any further record you wish to make with respect 

to that testimony, [defense counsel]? 

Defense counsel: I don't judge. I would let the court know 

that I don't have any other witnesses then. 

(Emphasis added.) Lindner was convicted for possession of methamphetamine and 

marijuana and acquitted on the paraphernalia charge. The trial court only imposed 

sentence for methamphetamine possession. Lindner received a suspended sentence 

and 180 days in the county jail based on the trial court's sentencing statement that 

this was essentially a "residue-type" case. Lindner appeals contending the trial 

court's decision denying the testimony was an abuse of discretion. 

ANALYSIS 

[¶7.] We review a trial court's ruling on the admissibility of evidence under 

an abuse of discretion standard. State v. Mattson, 2005 SD 71, ¶13, 698 NW2d 538, 

544. "With regard to the rules of evidence, abuse of discretion occurs when a trial 

court misapplies a rule of evidence, not when it merely allows or refuses 

questionable evidence." State v. Asmussen, 2006 SD 37, ¶13, 713 NW2d 580, 586. 
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Here, the trial court abused its discretion in determining advance notice of the 

statement was required for a statement against interest under SDCL 19-16-32 

(Rule 804(b)(3)). In analyzing the admissibility of the statement, the trial court 

first considered its admissibility under SDCL 19-16-35 (Rule 804(b)(6))(catch-all 

provision), which requires advance notice. SDCL 19-16-35 provides: 

A statement not specifically covered by any of §§ 19-16-30 

to 19-16-34, inclusive, but having equivalent 

circumstantial guarantees of trustworthiness, is not 

excluded by § 19-16-4 if the declarant is unavailable as a 

witness and if the court determines that 

(1) the statement is offered as evidence of a 

 material fact; 

(2) the statement is more probative on the point 

 for which it is offered than any other 

 evidence which the proponent can procure 

 through reasonable efforts; and 

(3) the general purposes of these rules and the 

 interests of justice will best be served by 

 admission of the statement into evidence. 

However, a statement may not be admitted under this 

section unless the proponent of it makes known to the 

adverse party sufficiently in advance of the trial or 

hearing to provide the adverse party with a fair 

opportunity to prepare to meet it, his intention to offer 

the statement and the particulars of it, including the 

name and address of the declarant. 

SDCL 19-16-35 (emphasis added). However, although this catch-all hearsay 

exception contains an advance notice requirement, that notice requirement does not 

apply to the firmly rooted exceptions to the hearsay rule found in SDCL 19-16-30 

thru 19-16-34. 

[¶8.] Therefore, Lindner contends that the trial court erred in ruling that 

the statement was also excluded under SDCL 19-16-32 (admissions against 

interest). That statute provides: 
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A statement which was at the time of its making so far 

contrary to the declarant's pecuniary or proprietary 

interest, or so far tended to subject him to civil or criminal 

liability, or to render invalid a claim by him against 

another, that a reasonable man in his position would not 

have made the statement unless he believed it to be true, 

is not excluded by § 19-16-4 if the declarant is unavailable 

as a witness. A statement tending to expose the declarant 

to criminal liability and offered to exculpate the accused 

is not admissible unless corroborating circumstances 

clearly indicate the trustworthiness of the statement. 

SDCL 19-16-32. "A party seeking to admit statements under this exception to the 

hearsay rule must prove (1) the declarant is unavailable, (2) the statement so far 

tends to subject the declarant to criminal liability that a reasonable person would 

not have made the statement unless he believed it to be true, and (3) the statement 

is corroborated by circumstances clearly indicating its trustworthiness." State v. 

Brings Plenty, 490 NW2d 261, 266 (SD 1992)(citations omitted). As the trial court 

recognized and defense counsel indicated, the witness was being called to testify as 

to what Richards stated when she interviewed him about the encounter at WalMart.3 Richards previously invoked his Fifth Amendment privilege against selfincrimination concerning the encounter and was therefore unavailable to testify. 

See SDCL 19-16-29 (Rule 804(a))("Unavailability as a witness includes situations in 

which the declarant is exempted by ruling of the court on the ground of privilege 

from testifying concerning the subject matter of his statement."); Brings Plenty, 490 

3. In State v. Crawford, 2007 SD 20, ¶ 10, 729 NW2d 346, 348, this Court 

examined a situation where a paralegal was also called to testify to 

statements made during an interview after the declarant invoked his Fifth 

Amendment privilege against self-incrimination. The trial court allowed 

some of the statements under SDCL 19-16-32 and excluded others and we 

affirmed the trial court's evidentiary rulings. Id. ¶ 22. 
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NW2d at 266 (declarant's exercise of his Fifth Amendment privilege makes him 

unavailable under SDCL 19-16-32).4 The trial court did not further analyze the 

admissibility of the witness' testimony and relied only on the lack of notice to the 

State in excluding the testimony; a requirement that does not exist for admission 

under SDCL 19-16-32. This was an error of application amounting to an abuse of 

discretion. 

[¶9.] As the trial court indicated in its ruling before invoking the notice 

requirement, a statement by Richards that he possessed drugs and paraphernalia 

would subject him to criminal liability as it is against his interest. The jury was 

also presented with evidence that Stricherz observed a verbal altercation with 

Lindner and Richards and that Lindner took something away from Richards. The 

evidence further indicated Lindner immediately informed law enforcement the 

items belonged to Richards when he was arrested. On remand, the trial court 

should apply the test set forth in Brings Plenty to this evidence and the proffered 

statement in order to determine its admissibility, an inquiry that was bypassed by 

the errant notice requirement.5

4. "The Rule requires not the unavailability of the declarant but the 

unavailability of the declarant's testimony. There is a difference. The 

declarant's presence on the witness stand will not block use of his or her 

extra-judicial statement if the declarant refuses to answer [or] exercises a 

privilege not to answer[.]" Weinstein's Federal Evidence, Vol. 5, § 804.03[1] 

(2006). The exercise of the privilege against self-incrimination creates such 

unavailability. Weinstein's, § 804.03[2] n5. 

5. "The corroboration requirement of this rule is a preliminary determination as 

to the statement's admissibility, not an ultimate determination about the 

statement's truth." Weinstein's, § 804.06[5][b][i]. "The corroboration 

requirement should not be used as a means of usurping the jury's function." 

Weinstein's, § 804.05[b][iii]. "Evidence that the declarant was near the scene 

and had some motive or background connecting him with the crime should be 
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[¶10.] Finally, the State argues that even if the defense theory of the case is 

true a parent taking drugs away from a child has no defense to a conviction and the 

fact Lindner did not dispose of the drugs immediately evidences his criminal intent. 

In order to support a conviction, the State was required to establish the possession 

was "knowing." See SDCL 22-42-5; 6 ("No person may knowingly possess . . ." ). In 

light of our decision to reverse and remand we do not address this contention other 

than to note that this is a question left to the jury to determine, especially 

considering the fact that Lindner was convicted for possession of methamphetamine 

based on residue in a pipe. 

[¶11.] Reversed and remanded. 

[¶12.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and 

MEIERHENRY, Justices, participating. 

sufficient corroboration." Id. To aid in the corroboration analysis, we note 

that the Eighth Circuit Court of Appeals has articulated the following factors: 

(1) whether there is any apparent motive for the out-of-court declarant 

to misrepresent the matter, (2) the general character of the speaker, 

(3) whether other people heard the out-of-court statement, (4) whether 

the statement was made spontaneously, (5) the timing of the 

declaration and the relationship between the speaker and the witness. 

 United States v. Bobo, 994 F2d 524, 528 (8thCir 1993) (citing United States 

 v. Rasmussen, 790 F2d 55, 56 (8thCir 1986)).