State v. Osman

1

2024 S.D. 15

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ADIL ABDULKADIR OSMAN, Defendant and Appellant.

No. 29993-a-JMK

Supreme Court of South Dakota

March 13, 2024

ARGUED APRIL 27, 2023

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE BRADLEY G. ZELL Retired Judge

KATHERYN DUNN of Minnehaha County Public Defender's Office Sioux Falls, South Dakota Attorneys for defendant and appellant.

MARTY J. JACKLEY Attorney General JACOB R. DEMPSEY Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

KERN JUSTICE

[¶1] Adil Osman was identified by two eyewitnesses, through a show-up identification procedure, as the driver of a vehicle that ran into a truck parked on a residential street. Osman was indicted for crimes related to this incident and moved to suppress the testimony and evidence related to the identification. After an evidentiary hearing, the circuit court denied the motion, and a jury later found Osman guilty of driving under the influence and leaving the scene of an accident. Osman appeals the denial of his suppression motion and the admission of alleged hearsay statements during trial. We affirm.

Factual and Procedural History

[¶2] Shortly after midnight on August 5, 2020, Becky and Troy Mielitz were sitting in their house in Sioux Falls when they heard what "sounded like a bomb [go] off in front of the house." Troy opened the door and saw that his truck, a 2001 Ford Ranger, which was parked in front of their house had been struck by another vehicle and pushed across the street. He noticed that the truck's front tires were up over the curb. There was also a 2001 Mazda Tribute (SUV) sitting in the intersection at the end of the block. The SUV was illuminated by the streetlights in the intersection. Both Becky and Troy stepped out the door to see what had happened.

[¶3] While Troy went back inside to put on his shoes, Becky ran down the street as she called 911 on her cell phone. She later stated that a man had gotten out of the SUV and was standing near the front passenger side looking at the damage to the vehicle. She was less than a half block from the SUV when the man looked up toward Becky and took off running. Becky told the dispatcher that she had "just seen some kid run down the street." Becky described the person as having "dark hair from what [she] could see up the street, like maybe a light-colored shirt." The dispatcher attempted to clarify, asking: "You said it was a white male?" Becky responded, "I don't know; I said you could tell he was wearing like white clothes and maybe a light-colored shirt and pants." Becky used "he" throughout the call.

[¶4] Troy testified at the suppression hearing that after he heard the sound of the collision, he "flew" to the door and saw his "pickup truck rolling across the street onto the neighbor's lawn and this white SUV limping away" until it stopped at the intersection "a half block down." He could see the driver moving around in the vehicle. He went back in the house to put on his shoes and walked toward the SUV when he saw the "guy" take off down the street. Approximately one or two minutes later two patrol cars came to the scene, one from the east and one from the west. Becky and Troy described the suspect and told the officers that he took off running east. When asked at the hearing if he could tell if the "individual was a boy or girl at that first look[,]" Troy indicated he knew "[i]t was a guy."

[¶5] Sergeant Chris Treadway responded to the 911 call, and while enroute, received a call from dispatch with a description of the suspect. Shortly thereafter, he noticed a man walking through a yard who matched the preliminary description from dispatch. The man would not make eye contact with Sergeant Treadway, but Sergeant Treadway did not stop him because he learned that officers had detained a suspect who had been walking in a nearby cemetery.

[¶6] Officer Bridget Devlin arrived at the scene and spoke with Troy and Becky about their observations. She indicated that they described the suspect as "a male wearing light-colored clothing." Additionally, Officer Devlin conducted a search of the SUV. The SUV had stalled in the intersection and had sustained substantial front-end damage. After inspecting the vehicle, Officer Devlin found an insurance card and a letter from the South Dakota Department of Motor Vehicles that identified Ayele Adane as the owner of the vehicle, but the address used for the registration was that of Mercato, a liquor and convenience store near West 12th Street.

[¶7] Sergeant Treadway, having been advised that the vehicle was registered to Mercato, began driving to the store to obtain information about the vehicle and its driver. On his way to the store, he again saw the man he had first observed while enroute to the accident scene. The individual was now running. By this time, Sergeant Treadway was aware that officers had ruled out the suspect located in the cemetery so he stopped the man to make contact with him. After Sergeant Treadway made the stop, Osman provided his identification, and Sergeant Treadway noticed that Osman had bloodshot eyes, "smelled heavily of intoxicants," and was "obviously intoxicated." Sergeant Treadway testified that he detained Osman because he was backing away from him as if he were preparing to run and because Sergeant Treadway believed Osman was the driver of the SUV. After searching Osman, Sergeant Treadway found a set of keys with a "Fred the Fixer" key on the ring, but none of them were vehicle keys.

[¶8] Officer Devlin, who was still at the scene of the crash, informed Becky that officers had detained a suspect nearby and that "[t]he guy that we- - that they stopped like downtown, it's the driver[,]" to which Becky responded, "Oh, thank God." Several minutes after this conversation took place, another officer contacted Officer Devlin and asked if the witnesses would be able to participate in a show-up identification. When asked if she would be able to identify the driver, Becky stated, "Well, I mean I seen him from a distance, but I think so."

[¶9] About twenty minutes after the incident occurred, Officer Devlin brought Becky and Troy to conduct a show-up identification at the spot where Sergeant Treadway had detained Osman, which Becky estimated was less than a mile from the scene. Becky and Troy stayed in Officer Devlin's vehicle while Osman, in handcuffs, got out of the back of a patrol car. Osman was standing next to several police vehicles, and an officer held his arm while shining a flashlight on and near him. Officer Devlin testified that she told Becky and Troy that the suspect was standing next to an officer. Becky stated, "I think that's him." She asked the officers to turn Osman to the side so that she could see his profile and said, "Yes," confirming that this was the man she saw looking at the damaged car and running from the scene. On the video of the show-up identification, Troy can be heard saying that he initially thought the person might have been a female, but he then agreed that Osman was the person he saw near the car because Osman was wearing the same clothes as the person he saw walking away from the SUV.

[¶10] Osman was charged by a Minnehaha County grand jury in a four- count indictment alleging he committed the offenses of driving under the influence (DUI) in violation of SDCL 32-23-1(2); driving under the influence (.08 percent alcohol) in violation of SDCL 32-23-1(1); leaving the scene of an accident involving an unattended vehicle in violation of SDCL 32-34-4; and open container, broken seal in a motor vehicle in violation of SDCL 35-1-9.1. The State filed a part II information alleging this was Osman's fourth DUI in the last ten years. Osman pleaded not guilty and denied the part II information.

[¶11] Prior to trial, Osman filed a motion to suppress both Becky and Troy's show-up identifications and any subsequent in-court identifications stemming therefrom. Osman argued that the show-up identification was impermissibly suggestive in violation of his due process rights. The circuit court held an evidentiary hearing on the motion. The parties stipulated to the admission of the 911 call from Becky and a thirty-seven-minute dashboard video from Officer Devlin's vehicle.^[1] Osman called Becky, Troy, and Officer Devlin to testify about the incident. Becky testified that she saw the man who got out of the SUV that hit the truck looking at the front passenger side of the vehicle he had been driving. As she started running toward him, he looked up and took off running down the street. Becky estimated she was less than a half block from the man.

[¶12] Troy testified that when he first opened the door and went outside after the crash, he could see someone in the vehicle. He went back inside to put on shoes while Becky ran outside and called 911. By the time Troy went back outside, he saw the man look at Becky and take off down the street. Troy stated he was not even a quarter of a block away from him. He testified that he knew the person was male when he first saw him. Officers arrived within one or two minutes, and Troy gave them a description of the man he saw running away. Troy testified that he did not see the man's face until the show-up identification, but he did see his clothing. When asked by the circuit court what the suspect was wearing, Troy testified that the suspect was wearing skinny blue jeans and a light-colored T-shirt. Troy acknowledged that he did not see the man's face because he was running away by the time Troy got to the SUV and stated that his identification was based on the suspect's dark hair, body build, and clothing rather than facial...