Drug dealer asks Supreme Court to overturn conviction tied to former roommate’s testimony

Jury should’ve been warned of woman’s status as an ‘accomplice,’ defendant says

By: - August 31, 2023 3:44 pm
South Dakota Chief Justice Steven Jensen gestures as he participates in oral arguments with other state Supreme Court justices on March 23, 2023, in Brookings. (David Bordewyk/South Dakota Newspaper Association)

South Dakota Chief Justice Steven Jensen gestures as he participates in oral arguments with other state Supreme Court justices on March 23, 2023, in Brookings. (David Bordewyk/South Dakota Newspaper Association)

A failure to inform jurors about a key witness’ immunity from prosecution unfairly tainted a drug dealer’s chance for a fair trial, his defense attorney told the South Dakota Supreme Court on Thursday in Pierre. 

A jury found Todd W. Stevens, of Brookings, guilty of six drug-related counts at his trial one year ago. Stevens admitted to possession of methamphetamine and marijuana, and keeping a place where drugs are used or sold. He contends he was more of a helpful meth-using friend than a drug dealer.

Stevens argues that his drug distribution charges don’t hold water because the state’s prime witness was a former roommate who testified to protect herself from prosecution, and that a jury deserved to know that.

Witness Ashley Burgers lived with Stevens, used meth and marijuana with him and occasionally helped him connect his friends with methamphetamine, according to her own testimony. She moved out in August of 2021, just as the investigation against Stevens began to pick up steam, defense attorney Don McCarty told the state Supreme Court justices Thursday, and she signed an agreement guaranteeing immunity from prosecution three days before Stevens’ trial began last summer.

“I would say to this court that the state knew it had no case on August 15th. That’s why they had to go get the immunity agreement from Ashley Burgers,” McCarty said.

Investigation, defense faulty

The investigation began with a tip from an informant, and included months of surveillance on Stevens’ home by a Brookings detective. That surveillance was mostly fruitless, McCarty said, at least in terms of providing proof of drug dealing.

“He does visual surveillance, electronic surveillance, captures cell phone information, trash pulls, and stops people after they leave this residence,” Stevens said. “None of those things lead to any leads. They lead to circumstantial evidence that there may be drug use going on.”

The Brookings detective was, however, able to glean from all that work that future witness Ashley Burgers lived with Stevens.

When she moved out of Stevens’ home that August, she was “immediately arrested for parole violations,” McCarty said.

Near the end of September 2021, a Highway Patrol trooper found methamphetamine in the vehicle of a man who’d been at Stevens’ house. That led to a search of Stevens’ home, which turned up small amounts of methamphetamine and marijuana, and to a traffic stop of Stevens in which law enforcement found methamphetamine in the vehicle. Stevens was charged with distributing drugs to the man caught with meth in September, and the case was in motion.

But in the months that followed, prosecutors were unable to secure enough evidence or testimony to prove that Stevens was a drug dealer.

That’s why Burgers’ immunity deal just before the trial matters, McCarty said.


Stevens’ lawyer at trial never asked the judge to include two jury instructions directing jurors not to convict solely on the basis of accomplice testimony. That, McCarty said, unfairly bolstered Burgers’ credibility and proves that his client’s prior lawyer was ineffective enough to warrant overturning Stevens’ conviction.

“You folks may prove me wrong, but I find no case in the state of South Dakota where those two instructions are not given when an accomplice testifies, and where that case is appealed to this court, where that conviction has not been reversed.”

Justice Mark Salter pushed back, however. There is a law in South Dakota that says a person cannot be convicted by testimony from an accomplice unless that witness’ testimony is backed by other evidence. 

“The statute doesn’t say, ‘Judge, you’ve got to give a cautionary instruction and you’ve got to give an accomplice instruction.’ It says the conviction can’t be sustained if there’s not corroboration.”

Prosecutor: Defendant guilty regardless of witness

Assistant Attorney General Stephen Gemar told the justices that Burgers wouldn’t qualify as an “accomplice” because Stevens argued at trial that she, not he, was the one distributing drugs from the home. 

Burgers testified that Stevens had distributed meth to her, Gemar said, and she couldn’t be both buyer and seller at once. She also said she’d witnessed Stevens distributing meth to others.

But Burgers was accused of distributing meth to the man whose 2021 traffic stop led to the issuance of a search warrant, Justice Janine Kern said. Gemar said that man’s name was not listed as a customer on Stevens’ indictment.

Chief Justice Steven Jensen asked Gemar how Burgers could avoid accomplice status in spite of her admission to fetching meth and delivering it to others. 

“That was a separate and distinct act from what Todd Stevens was doing,” Gemar said.


Justice Salter pushed further, pointing to a note found in the home’s trash bin on which Burgers had written that she planned to “get rid of” methamphetamine for Stevens.

“That is what the note said, but the fact remains that Stevens did not know it,” Gemar said. “At trial, his counsel accused Burgers of stealing that meth from Todd Stevens. So to me, that doesn’t sound like they were working together.”

He also said that the existence of similar conduct, in this case drug dealing, is not enough to tag a person as an “accomplice” under the law. Even if she were an accomplice and had been identified as such to jurors, he said, there was enough evidence to convict Stevens.

Gemar read a text message from Stevens to his son to show that the defendant had been a distributor.

“As much as I bought meth,” Todd Stevens wrote, “I also helped other friends, and we just paid each other back the cost. If that is considered being a distributor, then I guess I and all the past friends are dealers then. But I will say it’s BS to tag me or any other as a dealer, when the real ones have pounds or more available.”

Gemar also pointed to visits Stevens made to known drug dealers in Sioux Falls, a scale and spoon found in the home and a handful of other facts. 

Without Burgers’ testimony, Gemar said, there was “more than sufficient evidence in the record to sustain a conviction.”

The court will issue a decision at a later date.

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John Hult
John Hult

John is the senior reporter for South Dakota Searchlight. He has more than 15 years experience covering criminal justice, the environment and public affairs in South Dakota, including more than a decade at the Sioux Falls Argus Leader.