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 .