Sufficiency of Evidence upheld, CPU upheld, Sentence for death of Pizza Delivery person upheld

 

The SD Supreme Court handed down three decisions this morning:

 

1. Evidence sufficient for 1^st degree robbery conviction;

 

2. Conditional Use Permit requirement upheld;

 

3. Polygraph evidenced tendered by Defendant inadmissible.

 

 

Summaries follows:

 

STATE v. LONG SOLDIER, 2023 S.D. 37: The sole issue on appeal in the criminal case is sufficiency of evidence.  The facts and results are set forth in the opening paragraph:

 

[¶1.] Damen Long Soldier entered a casino and held up the cashier on duty at gun point. He pulled her behind the counter and struck her on the head with a pistol, causing her to fall to the floor. After failing to open the cash register or find money in her pockets, he took her purse from a chair in the office and fled. Long Soldier was convicted of first-degree robbery and sentenced to forty years. On appeal, he argues that the circuit court erred by denying his motion for judgment of acquittal because the evidence was insufficient to meet the elements of the offense and sustain the conviction. We affirm.

 

This decision is unanimous (5-0), with opinion by Justice Kern.

 

DAKOTA CONSTRUCTORS, INC. v. HANSON COUNTY BOARD OF ADJUSTMENT, 2023 S.D. 38:  This dispute is between the New Owner of a quarry and the County Zoning Commission.  The Zoning Commission held that because the area was zoned agricultural, the New Owner would need to acquire a Conditional Use Permit (CPU) “in order to extract sand, gravel, and rock from the site.”  New Owner asserted that a CPU was not necessary “because the operation of the quarry was a continuing prior nonconforming use.”  The Zoning Commission held that a CPU was required and granted same, making the CPU subject to “specified conditions.”  The trial court, acting on the New Owner’s Petition for Writ of Certiorari, agreed with the Zoning Commission.  The SD Supreme Court affirmed, agreeing with both the trial court and the Zoning Commission.   This ruling is unanimous (5-0), with opinion by Chief Justice Jensen.

 

STATE v. BANKS, 2023 S.D. 39: Defendant pled guilty to 1^st degree manslaughter and was sentenced to 80 years in prison, with 20 years suspended.  The victim was a pizza delivery person.  The sole issue on appeal is the trial court’s refusal to receive into evidence (as part of the sentencing hearing) certain polygraph evidence offered by Defendant.  The proffered evidence supported the Defendant’s version of the facts – that his co-Defendant was the shooter, not him.  The SD Supreme Court affirmed, stating:

 

[¶32.] The circuit court, in refusing to admit Banks’s polygraph evidence because of reliability concerns, cited extensive research showing that most state and federal appellate courts considering the admissibility of polygraph evidence at sentencing have upheld refusals to admit this evidence. See, e.g., Ortega, 270 F.3d at 548 (citing numerous cases from other appellate courts). While Banks attempts to distinguish a few of the cases the circuit court cited, he has not refuted the central point that the weight of the authority is contrary to his position. Moreover, given this Court’s clearly expressed concerns regarding the reliability of polygraph evidence, Banks has failed to show how the circuit court’s ruling would be “clearly against reason and evidence,” Reeves, 2021 S.D. 64, ¶ 11, 967 N.W.2d at 147 (quoting Berget, 2014 S.D. 61, ¶ 13, 853 N.W.2d at 52), or “outside the range of permissible choices.” Mitchell, 2021 S.D. 46, ¶ 27, 963 N.W.2d at 332 (quoting Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d at 83). We therefore conclude that the circuit court did not abuse its discretion in excluding the proffered polygraph evidence.

 

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

 

 

These decisions may be accessed at

 

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

One parent seeks termination of rights of other parent, absent adoption

 

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

 

1. May one parent seek termination of the rights of the other parent, absent a companion adoption proceeding?

 

INTEREST OF I.A.D., L.J.D., and C.M.D., 2023 S.D. 36: Mother sought termination of father’s parental rights pursuant to SDCL 25-5A, but did so unilaterally and not in the context of a companion adoption proceeding.  Mother asserted that Father’s consent is subject to waiver pursuant to SDCL 25-6-4.  (which is lodged in the “Adoption” sub-chapter).   The trial court denied relief, holding that the rights of the father could not be terminated in the absence of an adoption proceeding.  The trial court also held (alternatively) that Mother had not satisfied the requirements of SDCL 25-5A by failing to establish waiver of consent and failing to show that termination to be in the best interests of the child.  This result is affirmed by the SD Supreme Court, with an opinion authored by Justice DeVaney.  Affirmance based upon the alternative basis of the trial court is supported by all five justices.  But, there is a concurring opinion filed by Justice Salter and supported by Justice Myren.

 

The critical issue which divides the Justices is set forth as follows:

 

[¶16.] This Court has not yet been asked to interpret whether the 1995 amendment to SDCL 25-5A-18 indicates legislative intent to allow a parent to request the involuntary termination of the parental rights of another parent without a corresponding adoption.

 

The three-justice majority of the Court answers this question as follows:

 

[¶25.] Based on our review of SDCL chapter 25-5A, we conclude that the termination of a parent’s parental rights on a petition filed by the other parent under SDCL chapter 25-5A is authorized when there is consent by the respondent parent, with or without a corresponding adoption, or when the consent of a parent is deemed waived pursuant to SDCL 25-6-4 to facilitate an adoption. This, of course, assumes that in both instances, all the other provisions of chapter 25-5A are met.

 

The view of the two concurring justices is as follows:

 

[¶34.] Fundamentally, Mother does not have a statutory right of action to seek the termination of Father’s parental rights without a corresponding effort to transfer those rights to another person or an agency who would, in turn, receive them, as explained above.

 

Finally, it should be noted that the last sentence of ¶1 of the Court’s opinion (“… we affirm the circuit court’s determination that SDCL chapter 25-5A cannot be used to involuntarily terminate a parent’s rights without a corresponding adoption.”)  appears to be inconsistent with actual holding of the three-justice majority as set forth in ¶25, as quoted above.

 

This decision may be accessed at

 

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

"Stand Your Ground," Professional Negligence, Damage Award, Child Custody Award

 

The SD Supreme Court handed down four decisions this morning:

 

1. “Stand Your Ground Law” not retroactive;

 

2. Professional negligence claim time barred:

 

3. Damage award upheld; and

 

4. Child Custody decision upheld.

 

 

Summaries follows:

 

STATE v. SMITH, 2023 S.D. 32:  South Dakota’s newly enacted “Stand Your Ground Law” is not to be applied retroactively.  The criminal convictions in this case are affirmed.  (Defendant was sentenced to life without parole, and also to three sentences of 25 years to run consecutively.)  The facts and issues are reported in the opening paragraph:

 

[¶1.] A Facebook feud involving Ramon Smith’s (Smith) sister, her girlfriend, and another family led to a series of altercations that culminated in Smith firing a weapon, killing a bystander and wounding two others. Smith claims he acted in self-defense. Following a jury trial, he was convicted and sentenced for second-degree murder and three counts of aggravated assault. Smith appeals, arguing that he was entitled to a pretrial determination of statutory immunity under SDCL 22-18-4.8, a statute which became effective during the pendency of his case. He also argues that the circuit court abused its discretion by receiving evidence that he could not legally possess a firearm, erred by not granting a judgment of acquittal, and abused its discretion by not granting a mistrial. We affirm.

 

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

 

HOVEN v. BANNER ASSOCIATES, INC., 2023 S.D. 33:  This is an action asserting professional negligence against a Defendant engaged in “surveying and engineering services.” After the trial court rendered summary judgments which partially favored the plaintiffs and the defendant in regard to the applicable statutes (SDCL 15-2-13 and SDCL 15-2A-3), the SD Supreme Court granted discretionary appeals sought by each side.  The final result, by the Supreme Court, is that Plaintiffs’ cause of action is time-barred.  The Court’s ruling is unanimous (5-0), with opinion authored by Justice DeVaney.

 

WRIGHT v. TEMPLE, 2023 S.D. 34: This is an action for damages to an airplane. The SD Supreme Court previously addressed this dispute in Wright v. Temple , 2021 S.D. 15, 956 N.W.2d 436.  The trial court’s action on remand and the issues considered in this appeal are set forth in the opening paragraph of the opinion:

 

[¶1.]  On remand for a new trial on the limited issue of damages, the circuit court issued a memorandum decision awarding Wright $131,735.67 in damages, prejudgment interest, and costs. Temple appeals, challenging the court’s damages award and decision to award prejudgment interest. In response to an order to show cause by this Court, Temple and Wright also address the question whether we lack appellate jurisdiction because Temple did not serve the notice of the appeal and docketing statement on a third-party defendant.

 

In today’s ruling the Court concludes it has jurisdiction and affirms the lower court.  The decision is unanimous (5-0), with opinion authored by Justice DeVaney. 

 

HARWOOD v. CHAMLEY, 2023 S.D. 35: This is a child custody dispute between unmarried parents.  The trial court’s decision to award primary custody to Mother is affirmed by the SD Supreme Court.  In so doing, the Court rejected the Father’s arguments:

 

[¶17.] [Father] appeals, challenging the circuit court’s decision designating [Mother] as the children’s primary custodial parent and rejecting his proposal to continue the interim week on/week off custody arrangement. As indicated below, [Father] does not allege that the court’s findings are unsupported by evidence but rather claims that the court overlooked the presumption in SDCL 25-4-45.5 [custody denied to abusive parent], accorded dispositive weight to [Mother’s] role as the primary caretaker, and abdicated its judicial responsibility by, in his view, indiscriminately accepting [the custody evaluator’s] evaluation and testimony.

 

The Court’s decision (affirming the trial court) is unanimous (5-0), with opinion authored by Justice Salter.

 

These decisions may be accessed at

 

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

elf-funded MEWA prevails in dispute with Guaranty Association

 

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

 

1. Self-funded MEWA prevails in dispute with Guaranty Association

 

S.D. LIFE & HEALTH GUARANTY ASSOC. v. S.D. BANKERS BENEFIT PLAN TRUST, 2023 S.D. 31:  This litigation involves a “Guaranty Association” created under South Dakota Law for the purpose of protecting folks whose commercial insurer become insolvent.  The Guaranty is funded by making assessments against its members - solvent insurers.  In this case the Guaranty Association sought 5 years of assessments from the South Dakota Bankers Benefit Plan Trust (“Trust”) which “is a Multiple Employer Welfare Arrangement (MEWA) under ERISA,” operating as a self-funded entity under SDCL  58-18-88.  The Trust paid assessments for 3 years, but resisted paying assessment for 2 of the 5 years “because they were [sic] assessed after its membership in the Association ended.”  The Guaranty Association denied the Trust’s protest, forcing payment.  The Hearing Examiner agreed with the Trust and ordered a refund.  The trial court agreed with the Guaranty Association and ordered a return of the refunded assessments (for the two years) plus pre-judgment interest.   The SD Supreme Court agreed with the Trust, stating:

 

[¶33.] We conclude that the Trust was not liable to pay the Association’s 2020 and 2021 assessments arising from its obligations for the Penn Treaty liquidation. Under the governing statutes, Association members assume liability for assessments once they are both authorized and called. Because the Trust was not an Association member at the time the assessments were called, it assumed no financial liability.

 

 This ruling in unanimous (5-0), with opinion authored by Justice Kern. 

 

This decision may be accessed at

 

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