No Decision on Recreational Marijuana, LWOP on 2nd Degree Murder Aff'd

 

NOTE: Notwithstanding assertions by various individuals reported in the media this week, the SD Supreme Court did not release its decision on Recreational Marijuana this morning. 

 

The SD Supreme Court handed down one decision this morning:

 

1. LWOP on Jury Conviction of 2^nd Degree Murder upheld

 

Summary follows:

 

STATE v. LITTLE LONG, 2021 S.D. 38: Defendant was found guilty by jury of 2^nd degree murder and 1^st degree manslaughter.  The jury acquitted Defendant of 1^st degree murder.   Trial Court sentenced Defendant to Life Without Parole.  The SD Supreme Court affirmed, rejecting Defendant’s appellate assertions of improper admission of impeachment evidence, insufficiency of evidence and non-compliance with SD’s 180 day speedy trial requirement.  This decision is unanimous, 5-0, with opinion authored by Justice Kern. 

 

This decision may be accessed at

 

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

 

 

 

Two New Decisions today, both 3-2 Rulings, SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning. Both of these decisions are 3-2 decisions, with Justice Kern authoring a dissenting opinion in which Justice DeVaney concurs.  Chief Justice Jensen authors the majority opinion in each case, in which Retired Chief Justice Gilbertson concurs:

 

1)    Application of 180 speedy trial issue resolved for State;

2)   Restrictive Covenants in Deadwood resolved in favor of short term rentals during Sturgis Rally

 

Summaries follows:

 

STATE v. LANGEN, 2021 S.D. 36: The sole issue in this appeal relates to the State’s failure to comply with the 180 day speedy trial requirement found in SDCL 23A-44-5.1 in connection with the arrest of the Defendant in Minnehaha County.   The Minnehaha County arrest triggered a probation violation proceeding in Aurora County, with Defendant being sentenced to 4 years in prison by the Aurora County Court.   As a result of Defendant’s incarceration, he was unable to present himself for a UA, resulting in an arrest warrant being issued in Minnehaha County.  In regard to the Minnehaha County case, Defendant requested a 180 speedy trial rule dismissal.  The trial judge ruled for the State on the basis that the delay was caused by the Defendant’s “absence or unavailability.”  The resolution of this issue involves the application of SDCL 23A-44-5.1(4)(d) and the obligation, if any, on the Defendant to notify the Minnehaha County authorities that he is incarcerated elsewhere in the state.

This case was submitted on the briefs to the Court on briefs on April 20, 2020.  Authorship of the Court’s opinion was reassigned on February 19, 2021.  The SD Supreme Court affirmed the lower court in a 3-2 decision.  The majority opinion is authored by Chief Justice Jensen. Retired Chief Justice Gilbertson participated in this decision, with his vote included in the 3 justice majority.  

 

Justice Kern filed a dissenting opinion in which Justice DeVaney concurred.  Justice Kern’s dissent is premised upon the application of the presumption found in SDCL 23A-44-5.1(5). From Justice Kern’s dissenting opinion:

 

[¶48.]  Because the period of delay during which Minnehaha County officials erroneously believed [Defendant] was out of custody with a warrant pending was improperly excluded, prejudice to [Defendant]  is presumed. The case must be dismissed unless the prosecution successfully rebuts this presumption. SDCL 23A-44-5.1(5).  

 

WILSON v. MAYNARD, 2021 S.D. 37:  The nature of this dispute and its resolution is described in the opening paragraph of the opinion:

 

[¶1.] Rory and Kristen Maynard (Maynards) built a home in a residential development near Deadwood, South Dakota, and rented the home to short-term guests. The owners of an adjacent property, Robert and Sharlene Wilson (Wilsons), sued Maynards alleging that Maynards violated restrictive covenants limiting use of properties in the development to “residential purposes.” The circuit court granted summary judgment in favor of Maynards, holding that short-term rentals were a residential purpose, and denied Wilsons’ request for injunctive relief. We affirm.

 

The circumstances causing aggravation to the Plaintiffs can be discerned in the 9^th paragraph:

 

[¶9.] Maynards rented the Property nine times in 2018. In 2019, they rented the Property nearly every day between June and September. During the 2018 and 2019 Sturgis Motorcycle Rallies, they rented the Property to twelve guests at once; and the Property has housed as many as twenty guests at a time. Maynards charge $500 for weekday stays, $650 for weekend stays, and up to $1,200 per day during the Sturgis Rally.

 

The trial court held that the short-term rentals were permissible, not in violation of the covenants. This case was submitted on briefs on November 16, 2019. The SD Supreme Court affirmed in a 3-2 decision.  The Court’s opinion is authored by Chief Justice Jensen, with Retired Chief Justice Gilbertson and Retired Justice Konenkamp (sitting in lieu of Justice Salter) concurring. 

 

Justice Kern filed a dissenting opinion, in which Justice DeVaney concurs.

  

 These decisions may be accessed at

 

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

 

open-door doctrine, certified question answered

 

The SD Supreme Court handed down two decisions this morning:

 

1. Defendant loses to “open-door doctrine,” notwithstanding a change in the law;

 

2. Certified question on insurance coverage answered with 3-2 ruling

 

Summaries follows:

 

STATE v. NOHAVA, 2021 S.D. 34:  The opening paragraph of the Court’s opinion nicely summarizes the result and holding in the lower court and on appeal:

 

[¶1.] After a confidential informant purchased methamphetamine from Coye Nohava during a controlled drug buy, a grand jury indicted Nohava on one count of distributing a controlled substance and one count of possession of a controlled substance. Nohava was convicted on both counts after a jury trial. The evidence at trial centered on the testimony of the confidential informant. Nohava appeals, asserting the circuit court abused its discretion by allowing the informant to testify about other act evidence after finding Nohava opened the door to such testimony. Nohava also contends the circuit court erred in denying his motion for judgment of acquittal.

 

This decision is unanimous (5-0), with Justice DeVaney authoring the Court’s opinion.  Chief Justice Jensen filed a brief concurring opinion in which he addresses the fact that the law has changed in regard to the “open-door doctrine” which is now more limited, stating in ¶ 36:

 

The evidence of [Defendant’s] assault of [the female confidential informant] may have violated this rule, but given the state of our open-door doctrine at the time of trial, there was no abuse of discretion.

 

SAPIENZA v. LIBERTY MUTUAL INSURANCE, 2021 S.D. 35:  This dispute revolves around the seemingly simple question as to whether or not damages incurred as a result of the insured’s compliance with a state court injunction constitutes compensable damages under the insured’s Homeowners Policy and the insured’s Personal Liability Policy.  The facts in (involving the new construction of a home and its impact on a neighbor’s home) trace back to 2014 and include litigation in South Dakota state court, with a prior opinion by the SD Supreme Court in 2018.  Thereafter the insureds “filed suit in federal district court against [their insurer] alleging a number of claims, including breach of contract based on [their insurer’s] failure to provide coverage for the costs the [insureds] incurred to tear down their newly constructed home.”  The Federal Court certified the issue (“Do the costs incurred by the [insureds] to comply with the injunction constitute covered ‘damages’ under the Policies such that Liberty Mutual must indemnify the [insureds] for these costs?”)  to the SD Supreme Court.  The case was orally argued in the SD Supreme Court before the Pandemic, on November 5, 2019.  Authorship of the Court’s opinion was re-assigned some 17 months later,  April 9, 2021.  Today’s decision answers the question in the affirmative, holding yes (there is insurance coverage for these damages).  The Court’s ruling is a 3-2 decision, with Justice DeVaney authoring the majority decision (by virtue of the re-assignment).  Justice Salter filed a dissenting opinion, as to which Chief Justice Jensen joins.

 

These decisions may be accessed at

 

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