Order Granting Access to Victim's Journals triggers analysis of Marsy's Law

 The SD Supreme Court handed down one decision this morning, holding, inter alia:

 

1)    Order granting access to victim’s journals reversed (Marsy’s law applied)

 

Summary follows:

 

STATE v. WALDNER, 2024 S.D. 67: Co-Defendants “were indicted on varying degrees of rape and sexual contact a minor less than sixteen years of age.” Defendants were provided portions of a journal maintained by minor which detailed the conduct in question.  In response thereto, Defendants “sought other journals and diaries written by [minor] through a subpoena duces tecum.”  Trial court denied minor’s motion to quash, allowing access for Defendants.  Taking an intermediate appeal, the SD Supreme Court reversed and remanded.  This opinion analyzes and applies Marsy’s Law, an Amendment to the SD Constitution approved by 60% of popular vote in 2016.  This ruling is unanimous (5-0), with opinion authored by Justice DeVaney.

  

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

Consecutive Life Sentences Upheld

 The SD Supreme Court handed down one decision this morning, holding, inter alia: 

1)    Consecutive life sentences for 1^st Degree Murder Upheld 

 

Summary follows: 

STATE v. ABSOLU, 2024 S.D. 66: Defendant was convicted by jury of 3 counts of 1^st Degree Murder and sentenced to 3 consecutive life sentences.  Defendant’s appeal is predicated on the State’s non-disclosure of what Defendant’s describes as “Primary Witness Information.”  Defendant argued (and continues to argue) that disclosure was required under Brady and under the trial court’s pre-trial discovery order. The trial court denied Defendant’s Motion for New Trial.  The SD Supreme Court affirmed, holding:

[¶59.] We conclude that, although the broad language of the circuit court’s discovery order would include at least some of the information relating to [undisclosed information, Defendant] cannot prove he was prejudiced by the State’s failure to disclose it.

           The Court’s ruling is unanimous (5-0), with opinion authored by Justice Salter.

NOTE: The murders took place in Rapid City.  Note 3 of the Opinion states, “The State initially viewed this as a capital case, but it ultimately decided not to pursue the death penalty.” 

This decision may be accessed at 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Compliance with ICWA, Multiple Sentences Upheld, inmate granted habeas relief by 3/2 vote

 

The SD Supreme Court handed three decisions this morning:

 

1)    Termination of parental rights to Indian Children upheld;

 

2)   Multiple convictions and sentences upheld;

 

3)   inmate prevails on ineffective assistance of counsel claim in writ of habeas corpus proceeding, by 3-2 ruling.

 

Summaries follows:

 

INTEREST OF N.K., JR. AND S.K., 2024 S.D. 63: The trial court terminated the parental rights of Mother and Father, in regard to Indian Children.  Father appeals, asserting:  1) defect in service of process; 2) failure to establish termination as “the least restrictive alternative”; and 3) non-compliance with ICWA.  The SD Supreme Court rejects all of Father’s arguments and affirms the trial court.  This is unanimous decision (5-0), with opinion authored by Justice Kern.

STATE v. WASHINGTON, 2024 S.D. 64: Defendant was indicted and convicted on multiple counts, “including first-degree kidnapping, injury to personal property, and multiple counts of aggravated and simple assault.” The trial court imposed numerous sentences, with several running consecutively.  Defendant appeals asserting the following errors: “his trial counsel was ineffective, insufficient evidence to support the kidnapping conviction, improper convict[ion] on two counts of aggravated assault, [and non-conformity between] the circuit court’s written sentence [and] its oral sentence.” The SD Supreme Court rejected all of Defendant’s assertions and affirmed the trial court.  The Court’s decision is unanimous (5-0), with opinion authored by Justice DeVaney.   

 

SCHOCKER v. FLUKE, 2024 S.D. 65:  Inmate had been convicted by jury of “aggravated assault against a law enforcement officer” and sentenced to 25 years in prison, with 15 years suspended.  His direct appeal failed.  Thereafter, inmate brought this habeas corpus action alleging ineffective assistance of counsel.  The trial court (“habeas court”) agreed and granted relief to inmate.  State appeals.  The SD Supreme Court affirmed, also finding ineffective assistance of counsel.  This decision is split (3-2), with the Court’s opinion being authored by Justice Myren. 

Justice Kern filed a dissenting opinion, which is supported by Justice Salter, agreeing that the attorney’s performance was shown to be “deficient performance,” but also stating that she is, “unable to conclude that, but for this error, there is a ‘reasonable probability’ that [inmate] would not have been convicted.”

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

 

3 new decisions by SD Supreme Court

 The SD Supreme Court handed three decisions this morning:

 

1)    Goff divorce decision, remix;

 

2)   Employee prevails in Work Comp appeal;

 

3)   Search of passenger’s purse scrutinized.

 

Summaries follows:

 

GOFF v. GOFF, 2024 S.D. 60:  This appears to be a “new” decision which is perhaps intended to replace the decision handed down by the Court a month ago, on September 11.  The previous decision was rendered on the basis that Appellant’s brief had not been timely filed, with the Court stating:

[¶11.] We note at the outset that this Court’s order could have potentially caused confusion, as it directed the Appellant to refile Fawna’s responsive brief on or before April 8, 2024. Regardless, “failure of the appellee to file a brief does not automatically translate to victory for the appellant. Appellant still has the burden of showing that the findings of fact are clearly erroneous or that the conclusions of law are incorrect.” Wichman v. Shabino, 2014 S.D. 45, ¶ 5 n.3, 851 N.W.2d 202, 203 n.3 (quoting Hawkins v. Peterson, 474 N.W.2d 90, 92 (S.D. 1991)). We must therefore still analyze the assignments of error urged by Terry.

Today’s decision has substituted ¶11 so as to read as follows:

[¶11.] Because this Court’s order could have potentially caused confusion, as it directed the Appellant to refile Fawna’s responsive brief on or before April 8, 2024, we permitted Fawna to file a responsive brief on or before June 17, 2024. The brief was timely received and considered by the Court.

Otherwise the result on appeal appears to be the same result as that set forth in the earlier decision.  NOTE: Nothing in today’s opinion states that the prior ruling has been withdrawn.

My previous Summary of the former decision, which appears to remain intact, is set forth here:

GOFF v. GOFF, 2024 S.D. 57: A default hearing on a Divorce petition evolved into a trial on the merits when Defendant (H) appeared telephonically and indicated that he wished to proceed.  Both parties were placed under oath and testified.  The trial court granted W a divorce on the ground of adultery and made determinations of child custody, child support, division of property and also made a partial award of attorney fees in favor of W.  The SD Supreme Court held that the trial court did not err by proceeding to a trial on the merits.  As to the merits, the SD Supreme Court reversed and remanded as to the following: 1) determination of child support arrearage; 2) visitation restriction on H mandating that visitation be exercised only in SD (restriction unsupported by proper findings); 3) attorney fee award to W.  This is a unanimous decision (5-0) with opinion authored by Justice Kern. 

 

 ARNESON v. GR MANAGEMENT, LLC, 2024 S.D. 61: This is a work comp case which generated 3 opinions by the Justices of the SD Supreme Court.  The DOL found the employee, having been injured by an electric shock, was “permanently and totally disabled under the odd-lot category” in regard to two injuries:  heart condition (A-fib) and numbness in his right hand.  On appeal to the Circuit Court, the employer/insurer prevailed with the trial court finding the employee “was not permanently and totally disabled.”  The SD Supreme Court reversed stating, “we affirm the Department’s determination that [employee] was permanently and totally disabled under the odd-lot category.”  The Court’s opinion is authored by Justice Myren (with CJ Jensen wholly agreeing).  Justice Salter filed a concurring opinion.  Justice DeVaney filed an opinion which concurs in part and dissents in part: dissenting as to how the Majority handles the “availability of suitable employment in the community” issue, suggesting that remand on this issue would be more appropriate. Justice Kern agrees with Justice DeVaney.

 STATE v. EDWARDS, 2024 S.D. 62: Driver of vehicle was lawfully pulled over and lawfully charged with possession of Meth.  Female passenger was asked to exit vehicle during search and she did so with her purse – with the purse in her close possesson (on her lap in the vehicle and then over her shoulder upon exiting vehicle).  After female passenger denied request by law enforcement to surrender her purse for inspection, it was forcibly taken from her.  Thereafter she was “indicted for possession of a controlled substance; possession of marijuana, two ounces or less; obstructing a law enforcement officer; and possession of drug paraphernalia… [and] The State also filed a part II habitual offender information alleging that [passenger] had been convicted of a prior felony.” The issue, as presented in a Motion to Suppress, was whether the seizure of the purse was lawful.  The trial court denied Defendant’s Motion to Suppress. The SD Supreme Court Affirmed the Denial in a 4-1 ruling, holding that the seizure of the purse was permitted as part of a search incident to the driver’s arrest. The Court’s opinion is authored by Chief Justice Jensen. Justice Myren dissented, expressing the view that passenger’s continuous exertion of close possession of her purse did not warrant its seizure.   

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

Former AG's law license suspended 6 months; Adverse Possession determines title to mobile home lot

 The SD Supreme Court handed down two decisions this morning: 

1)    Former AG’s law license suspended for 6 months;

 

2)   Title to Mobile Home Lot acquired by Adverse Possession.

 

Summaries follows:

 

DISCIPLINE OF RAVNSBORG, 2024 S.D. 58: Disciplinary proceeding against the former Attorney General resulted in the Referee’s recommendation of public censure, “finding that Ravnsborg improperly used his title as attorney general to receive favorable treatment.”  The SD Supreme Court ordered additional briefing and conducted de novo review, “[b]ecause the Referee was in no better position than this Court is to weigh and consider documentary evidence.” Following oral argument, the Court handed down this ruling which orders a 6 month suspension of the former AG’s law license.  The concluding paragraph of the opinion provides:

[¶53.] After reviewing the facts and weighing the relevant mitigating and aggravating factors, the Court hereby suspends Ravnsborg’s license to practice law in South Dakota for a period of six months. While Ravnsborg is unlikely to continue practicing law in South Dakota, we conclude suspension is necessary to preserve theintegrity of the profession and deter like conduct by other attorneys. The six-month suspension shall commence on the date of entry of the order of suspension. Pursuant to SDCL 16-19-70.4, Ravnsborg shall also be responsible for reimbursing the State Bar of South Dakota for all costs and expenses related to these proceedings. These costs and expenses shall be reimbursed prior to his reinstatement to practice law in South Dakota.

This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.

HOFFMAN v. HOLLOW HORN, 2024 S.D. 59: This case involves litigation over title to a mobile home lot in Eagle Butte.  Administrator of the Estate of “Mother Theresa Hoffmann” filed this action claiming legal title.  The trial court ruled in favor of subsequent possessors based upon two theories adverse possession.  The SD Supreme Court affirmed, based upon on just one of the theories – the basis that title was acquired through adverse possession in the name of the grantor of a subsequent quit claim deed. This ruling is unanimous (5-0), with opinion by Chief Justice Jensen. 

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

 

SD Hands down 2 new decisions

 

The SD Supreme Court handed down two decisions this morning:

 

1)    3^rd trial does not offend double jeopardy;

 

2)   Conversion of Default hearing to “merits” permitted; problematic issue with filing of appellate brief.

 

Summaries follows:

 

STATE v. ROSE, 2024 S.D. 56:  Defendant was prosecuted for assault in Magistrate Court.  After two mistrials, Defendant was convicted by Jury.  Defendant asserted (and now asserts again) that the 3^rd jury trial was barred by double jeopardy.  Defendant also asserted that mistrial # 2, granted at the request of the State’s Attorney, was wrongly granted.   The Circuit Court rejected the Defendant’s double jeopardy claim.  And, so does the SD Supreme Court.  This is a unanimous decision (5-0), with opinion authored by Justice DeVaney.  

Of interest is the SD Supreme Court’s recognition that the Circuit Court in this matter was acting an intermediate appellate court and not entitled to deference:

[¶22.] Although this is an appeal from a circuit court’s order, the circuit court was functioning here as an intermediate court of appeals. See State v. Delfs, 396 N.W.2d 749, 752 (S.D. 1986). As in Delfs, the circuit court did not hear the evidence or testimony. See id. Therefore, “the circuit court decision is not entitled to any deference.” Id.

 

GOFF v. GOFF, 2024 S.D. 57: A default hearing on a Divorce petition evolved into a trial on the merits when Defendant (H) appeared telephonically and indicated that he wished to proceed.  Both parties were placed under oath and testified.  The trial court granted W a divorce on the ground of adultery and made determinations of child custody, child support, division of property and also made a partial award of attorney fees in favor of W.  The SD Supreme Court held that the trial court did not err by proceeding to a trial on the merits.  As to the merits, the SD Supreme Court reversed and remanded as to the following: 1) determination of child support arrearage; 2) visitation restriction on H mandating that visitation be exercised only in SD (restriction unsupported by proper findings); 3) attorney fee award to W.  This is a unanimous decision (5-0) with opinion authored by Justice Kern. 

There is an interesting issue here with the attempted filing of an appellate brief by W.  W missed the deadline to file an Appellee brief and thereafter filed a motion for extension of time which was granted.  W submitted her Brief, but it was filed with the Court and served on opposing counsel 1 day late.  The SD Supreme Court Clerk rejected it.  Thereafter W filed a Motion for Waiver of this Default and the Waiver was granted with directions that W file the Brief by a subsequent date.  W did not file (or refile) the Appellee Brief.  As a result the Court admonishingly stated that W had not presented any arguments on appeal:

[¶11.] The Court granted this motion, ordering that “appellant shall file the appellee’s brief on or before April 8, 2024.” No such brief was filed and, as a result, this Court has been presented with no arguments from [W].

Nonetheless, the Court relented restating the established rule in SD that, “failure of the appellee to file a brief does not automatically translate to victory for the appellant.”

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

 

 

4 new SD Supreme Court decisions this morning

 

The SD Supreme Court handed down four decisions this morning, holding, inter alia: 

1)    Rape convictions affirmed;

 

2)   insurance coverage for fire loss excluded;

 

3)  “standby counsel” did not violate Defendant’s right to proceed pro se;

 

4)   order denying confirmation of specific devise not appealable;

 

Summaries follows:

 

STATE v. O’BRIEN, 2024 S.D. 52:  Defendant was convicted, by jury, of multiple charges of “rape, sexual contact with a child under the age of sixteen, and sexual exploitation of a minor.”  The trial court imposed multiple prison sentences.  The SD Supreme Court affirmed, rejecting Defendant’s allegations of: a) insufficiency of evidence; b)duplicity of charges: and (c)  "plain error" in regard to the jury instructions.  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen.  (NOTE:  This case was orally argued less than 3 months ago.)

 

ACUITY INSURANCE v. A MAXON and WEATHERSPOON, 2024 S.D. 53: Buyers and Sellers of business sought coverage under fire insurance policy, following fire to premises.  The transaction was arranged as a “contract for deed,” buyers to receive title through their LLC.  Jury found that one of the Buyers, a “principal” of the LLC had “had intentionally started the fire.”  As a result the trial court entered “judgment as a matter of law” in favor of insurer (and against both Buyers and Sellers), holding that Buyer’s conduct also excluded coverage for Sellers. The SD Supreme Court affirmed.  The decision is unanimous (5-0), with opinion authored by Justice Salter.

STATE v. HEER, 2024 S.D. 54: Facing multiple drug charges, Defendant filed a “motion to represent himself.” The Trial Court responded by granting the motion, “but [also ] ordering his former court-appointed attorney to serve as standby counsel.”  Jury found Defendant guilty on all counts.  Defendant presents this appeal, "[w]ith the assistance of different appointed counsel," Defendant asserts “improper vouching” by the Prosecutor in closing argument and also that his “Sixth Amendment right to self-representation was violated by the appointment of standby counsel and by standby counsel’s presence at trial.” The SD Supreme Court rejected Defendant’s arguments and affirmed.  This decision is unanimous (5-0), with opinion authored by Justice Salter.

 

ESTATE OF AGER, 2024 S.D. 55: Personal Representative (PR), daughter of deceased from earlier marriage, began unsupervised administration of Decedent’s estate.  Decedent’s Widow filed petition for supervised administration.  PR then filed “motion for confirmation of a specific devise.” The Trial Court granted Widow’s petition for supervised administration and thereafter denied PR’s “motion for confirmation of a specific devise.”  Trial Court also denied Widow’s motion to have PR removed as PR.  PR filed Notice of Appeal.  Widow filed Notice of Appeal.  Both Notices of Appeal are dismissed.  With respect to PR’s effort to appeal, the last paragraph of the Court’s opinion is instructive:

[¶15.] Here, the undisputed procedural sequence of events demonstrates that the order for supervised administration was signed before the circuit court’s order denying [PR’s] motion for confirmation of a specific devise. See SDCL 15-6-58 (“A judgment or order becomes complete and effective when reduced to writing, signed by the court or judge, attested by the clerk and filed in the clerk’s office.”). Under the circumstances, the action had become a supervised administration and a single in rem proceeding not subject to Geier’s [In re Estate of Geier, 2012 S.D. 2, ¶ 15, 809 N.W.2d 355, 359] individual-proceeding rule of finality. We therefore dismiss [PR’s] appeal and, likewise, [Widow’s] notice of review.

Further explanation for the dismissal for the Widow’s attempted appeal is set forth in note 2, at the end of the Opinion.  This decision is unanimous (5-0), with opinion authored by Justice Salter.  

These decisions may be accessed at

 http://ujs.sd.gov/Supreme_Court/opinions.aspx .