40 year prison sentence upheld for Defendant who was 14 years old at the time of the offense

 

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

 

1. 40 year prison sentence upheld for Defendant who was 14 years old at the time of the offense

 

STATE v. BLACK CLOUD, 2023 S.D. 53: Defendant, who was 14 years old at the time of the offense, was tried as an adult and found guilty of 2^nd degree murder by jury. The trial court sentenced Defendant to 40 years in prison.  Defendant’s 16 year old companion Johnson -- who was present during the events related to the killing, but who did not pull the trigger --  was tried as an adult.  Johnson “pled guilty to aggravated assault and accessory to [the] crime,” and received a 20 year sentence.  The SD Supreme Court affirmed, ruling against Defendant on each of the following assertions of error:

 

1. Whether the circuit court abused its discretion in denying Black Cloud’s motion for a mistrial following the voir dire discussion regarding Black Cloud being tried in adult court.

2. Whether comments to the jury regarding Johnson’s guilty plea constituted plain error.

3. Whether the circuit court abused its discretion when it refused to instruct the jury to disregard Johnson’s guilty plea.

4. Whether the circuit court erred in excluding evidence that [the victim] was on parole at the time of his death.

5. Whether the circuit court abused its discretion by imposing a 40-year sentence or erred by imposing a sentence in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

 

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

 

Although the State had made some inappropriate comments in voir dire relating to the fact the Defendant was being “tried as an adult,” the trial court directed the State’s Attorney to provide an explanation which “clarified” the inappropriate comments.

 

As to the propriety of transfer from Juvenile Court to Circuit Court, the SD Supreme Court held that the transfer “issue is not properly before us.” (footnote 10).

 

This decision may be accessed at

 

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

Deadwood Dispute

 

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

 

1)    Deadwood Hotel/Casino Sale Dispute laid to rest

 

BROCKLEY v. ELLIS, ET AL., 2023 S.D. 52:  Protracted litigation in regard to the sale of a hotel/casino in Deadwood.  The events giving rise to litigation are not susceptible to a succinct summary.  The opening paragraph of the opinion describes the resolution of the dispute at the trial level and on appeal, as follows:

[¶1.] The circuit court entered two orders in which it denied requests from Mark and Annesse Brockley (the Brockleys) to hold Michael Trucano (Trucano), the Michael J. Trucano Living Trust (Trucano Trust), and Hickoks Hotel & Suites, LLC (Hickoks) in contempt. The Brockleys filed a timely appeal. We affirm.

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

This decision may be accessed at

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

 

 

3 reversals (civil cases); 1 affirmance (criminal case)

 

The SD Supreme Court handed down four decisions this morning:

 

1. Mechanic’s lien enforced;

 

2. Option agreement upheld:

 

3. Attempted modification of variance rejected; and

 

4. LWOP sentence upheld.

 

 

Summaries follows:

 

SMITH MASONRY v. WIPI GROUP, USA, INC., 2023 S.D. 48:  This is an action for a mechanic’s lien foreclosure and attorney fees.  A counterclaim was filed. Following a 6-day bench trial, the trial court denied relief to both plaintiff and defendant invoking “principles of equity” to support its ruling.  The trial court also ordered each side bear its own attorney fee obligation.  The SD Supreme Court reversed and remanded, ordering the “[trial] court to enter a judgment of foreclosure in favor of Smith Masonry on its mechanic’s lien.” The Court also ordered the trial court to reconsider Plaintiff’s request for attorney fees.  This decision is unanimous (5-0), with opinion authored by Justice DeVaney.

 

PARMELY TRUST v. MAGNESS, 2023 S.D. 49: This dispute, as well as its resolution at the trial level and on appeal, is summarize in the opening paragraph as follows:

 

[¶1.] The Genevieve J. Parmely Revocable Trust sought a declaratory judgment asking the court to determine that an option agreement made with Brad Magness was invalid because of the absence of consideration. The parties filed cross-motions for summary judgment regarding the existence of consideration. The circuit court granted summary judgment in favor of the Trust. Magness appeals. We reverse and remand with direction to enter summary judgment on that issue in favor of Magness.

 

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

 

GONSOR v. DAY COUNTY, 2023 S.D. 50: Landowners were granted a variance from zoning requirement (for grading rocks and setbacks) as to their property.  This decision was “filed” on or before December 15, 2015.  Neighbors requested a reconsideration on January 14, 2016.  On March 29, 2016, Zoning Board “modified” the variance by imposing an additional requirement.  Landowners then sought a building permit 4 years later and were denied because on non-compliance with the “modification” which was subsequently imposed.  Landowners sued County Commission and Board for Declaratory Judgment. Both the County Commission and the trial court ruled against the landowners, due to non-compliance with the “modification.” The SD Supreme Court reversed and remanded.   Applying SDCL 11-2-61, the Court stated:

 

[¶13.] As noted in Jundt, the “right to reverse an earlier, erroneous adjudication lasts until jurisdiction is lost by appeal or until a reasonable time has run, which would at least be co-extensive with the time required by statute for review.” 2007 S.D. 62, ¶ 7, 736 N.W.2d at 512 (quoting Stearns-Hotzfield v. Farmers Ins. Exch., 360 N.W.2d 384, 389 (Minn. Ct. App. 1985)). Consequently, any authority the Board of Adjustment had to reconsider its November 2015 decision ceased to exist when that decision became final on January 14, 2016. The filing of a request for reconsideration did not extend the time to appeal, and the Board of Adjustment did not reconsider the variance before the appeal time expired. Consequently, the Board of Adjustment no longer had the authority to reconsider the variance when it did so on March 29, 2016.

 

This decision is unanimous, with opinion authored by Justice Myren.

 

STATE v. CAFFEE, 2023 S.D. 51: Upon a guilty plea to 1^st degree manslaughter, Defendant was sentenced to life without parole.  The SD Supreme Court rejected Defendant’s appeal predicated upon cruel and unusual punishment and abuse of discretion.  The underlying facts, as set forth in the opinion are as follows:

 

[¶1.] On October 24, 2021, while a no-contact order was in place, Mitch Caffee (Caffee), armed with a pistol, forced his way into the home where his wife, Katie Caffee (Katie), was staying with her ninety-year-old grandmother, Lorraine Redmann. Caffee had posted bond following a prior violation of the no-contact order just four days before. Once inside Redmann’s home, he struck Katie and pushed her down onto a couch. When Redmann came out of her bedroom and tried to call 911, Caffee fatally shot her in the face. With Redmann lying dead on the floor, Caffee proceeded to hold Katie hostage in the home for hours while he contemplated his next steps. Caffee eventually surrendered and was arrested and charged with multiple offenses including first-degree murder.

 

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

 

These decisions may be accessed at

 

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

Appeals by Juveniles sentenced to prison dismissed

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

 

1)    Appeals by Juveniles sentenced to prison dismissed

 

INTEREST OF S.A. and INTEREST OF E.B., 2023 S.D. 47:  In separate cases, now consolidated on appeal, Juveniles seek to appeal determinations of “juvenile delinquency” and orders of commitment to the Department of Corrections.  Both appeals are dismissed because “the juveniles failed to properly serve the notices of appeal on their respondent parents.”  This decision is unanimous (5-0) with opinion designated as per curiam. 

This decision may be accessed at

 

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

 

 

 

Administrative Appeal Upheld; Other Acts evidence permitted in Rape Trial

 

The SD Supreme Court handed down two decisions this morning:

 

1. Administrative Appeal to Circuit Court upheld;

 

2. Other Acts Evidence permitted in Rape Trial.

 

Summaries follows:

 

KOVAC v. S.D. REEMPLOYMENT ASSISTANCE DIVISION, 2023 S.D. 45:  Kovac was ordered by an ALJ (affirmed by the DOL Secretary) to repay “$20,278.00 in federal pandemic unemployment benefits.” Kovac sought to file an appeal to Circuit Court by letter.  On the final day permitted for filing, the Hughes County Deputy Clerk rejected the appeal and mailed the letter back to Kovac advising non-compliance with various Supreme Court Rules.  Kovac secured counsel and attempted to again file an appeal – to no avail.  The trial court upheld the action of the Deputy Clerk, holding, inter alia, that Kovac’s failure to file a “case filing statement requirement under SDCL 15-6-5(h)” was jurisdictional and its omission deprived the court of authority to act.  The SD Supreme Court reversed, stating:

 

[¶27.] The case filing statement requirement under SDCL 15-6-5(h) is a Supreme Court Rule. There is nothing in SDCL 1-26-31 or in SDCL chapter 1-26 that requires the filing of a civil case statement as a jurisdictional prerequisite to perfecting an administrative appeal to circuit court.

 

In support of its holding, the Court cited and quoted the U.S. Supreme Court decision, Boechler, P.C. v. Comm’r of Internal Revenue, __ U.S. __, 142 S. Ct. 1493, 1497 (2022).  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen.

 

STATE v. ORTIZ-MARTINEZ, 2023 S.D. 46: Defendant was convicted by jury of 2 counts of rape and sentenced to 25 years on each count, with the sentences to run consecutively.  Defendant asserts on appeal that the State improperly introduced evidence of other uncharged acts of rape, and also error in instructing the jury appropriately in regard to “other acts” evidence.  The SD Supreme Court affirmed, holding that Defense Counsel had “opened the door” in cross examination, stating:

 

[¶34.] [O]ther acts evidence could be admitted by acquiescence, or where both parties elicit it, or when one party opens the door to the admission of other acts evidence. See State v. Taylor, 2020 S.D. 48, ¶ 34 n.4, 948 N.W.2d 342, 352 n.4 (quoting State v. Letcher, 1996 S.D. 88, ¶ 25, 552 N.W.2d 402, 406) (holding that a circuit court may permit the State to “introduce otherwise inadmissible evidence when a criminal defendant’s trial strategy has ‘opened the door’ to the evidence”). In fact, that happened here when defense counsel asked the forensic examiner, “She didn’t disclose multiple rapes though; did she? I watched that video. She didn’t disclose multiple rapes?” In a direct response to the question, the forensic interviewer confirmed that L.V. had disclosed multiple instances in which her stepfather had penetrated her digitally and with his penis “at the old house, the new house, as well as the camper.”

 

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 .

Prison sentence for extreme road rage upheld; Clay County CPU litigation remanded

 The SD Supreme Court handed down two decisions this morning:

 

1. Extreme Road Rage incident in Sioux Falls results in prison sentence;

 

2. Clay County CPU litigation remanded;

 

 

Summaries follows:

 

STATE v. KWAI, 2023 S.D. 42:  As a result of an original near-accident encounter on a roadway in Sioux Falls and subsequent interactions between Defendant and Victim (road rage in the extreme), Defendant was charged with:

 

[¶9.] … aggravated assault (extreme indifference); aggravated assault (dangerous weapon; crowbar and/or metal pipe); aggravated assault (dangerous weapon; vehicle); aggravated assault (physical menace); hit and run (injury or death); and hit and run (property damage).

 

Victim sustained:

 

[¶8.] … a head injury requiring multiple staples to repair, nine broken ribs, a broken hip, and a fractured femur. [Victim] was in the hospital for approximately one month and underwent eight surgeries. [Victim] has used a wheelchair since the incident and suffers from memory and speech issues.

 

Jury convicted Defendant on all counts.  The trial court sentenced Defendants to 15 years (with 5 suspended) on aggravated assault, and a concurrent sentence of 2 years (with two years suspended) on felony hit and run.  Sentences on remaining counts were not imposed.  Defendant was given credit for 409 days served. 

 

Treating this appeal as a Korth brief appeal, the SD Supreme Court affirmed, holding, inter alia, that South Dakota’s “felony hit and run statute applies regardless of whether the defendant’s acts were intentional.”  Court’s opinion is unanimous (5-0), with opinion authored by Justice DeVaney. 

 

HAUCK v. CLAY COUNTY COMMISSION, 2023 S.D. 43: Petitioner sought a Conditional Use Permit (CPU) in Clay County for Recreational Campground, originally seeking to establish 408 camping sites.  The Clay County Planning and Zoning Commission denied the permit. Petitioner appealed to the “Clay County Commission, which was sitting as the Board of Adjustment,” which upheld the denial.  Petitioner sought relief in Circuit Court, requesting a writ of certiorari and writ of mandamus.  The Circuit denied review, holding that the request for writ of certiorari was untimely.   The SD Supreme Court upheld the denial of a writ of mandamus, but reversed and remanded in regard to the request for writ of certiorari.  The Court stated:

 

[¶10.]  Under SDCL 11-2-61, the thirty-day time to file an appeal to the circuit court of a decision by the Board of Adjustment begins to run upon the “filing” of that decision. Because we cannot determine from the settled record whether or when the Board’s decision was filed, we cannot determine whether the circuit court had jurisdiction to act in this case. We reverse the circuit court’s decision dismissing the petition for writ of certiorari and remand for further proceedings to determine the jurisdictional question of whether Hauck’s petition was timely filed.

 

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

 

These decisions may be accessed at

 

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

Sculptor's Claims against Kevin Costner Survive; State's failure to give notice of Expert Tesimony held non-prejudicial

 

The SD Supreme Court handed down two decisions this morning:

 

1. Sculptor’s claims against Kevin Costner survive;

 

2. Failure by State to give notice of expert testimony found to be non-prejudicial;

 

 

Summaries follows:

 

DETMERS v. COSTNER, 2023 S.D. 40: This is a dispute between the Sculptor and Kevin Costner over several “bronze sculptures of buffalo and Lakota warriors on horseback.”  After the non-completion of the proposed “The Dunbar Resort,” Kevin Costner was sued but he won round #1 of this litigation because of his decision utilize the sculptures in connection with “Tatanka,” another project on the same site.  Subsequently, Costner listed the property for sale.  The listing agreement excluded the sculptures, designating them as items that Costner, as seller, would be retaining.  The Sculptor filed this 2^nd lawsuit. The trial court ruled for Costner, but the SD Supreme Court reversed and remanded.  The Court held that the Sculptor’s claims are not barred by res judicata and also that the trial court, “erred in its conclusion that Costner had no remaining obligation under the [parties’] Agreement.”  This decision is unanimous (5-0) with opinion authored by CJ Jensen.  Circuit Judge Douglas Barnett sat on this case, in lieu of Justice Salter.

 

STATE v. PRETTY WEASEL, 2023 S.D. 41: Defendant was found guilty, by jury, of 10 counts of sexual contact with a minor under 16 and of 1 count of 1^st degree rape. The trial court sentenced the Defendant to 10 years on the each of the 10 contact counts (to run concurrently) and 25 years on the rape count (to run consecutively to the 10 year sentences).  Defendant’s assertions of error on appeal related to the testimony of a witness who was “a mental health practitioner, who had served as the victim’s counselor.”  Defendant asserted that this witness’s testimony improperly bolstered the victim’s testimony and that the testimony was in the nature of expert testimony for which the State had failed to give proper notice to the Defendant. (NOTE: The State did give proper notice for a different expert who did, in fact, testify.)  The SD Supreme Court affirmed, rejecting both arguments. As to the State’s failure to give notice, the Court found that such failure was non-prejudicial, stating:

 

[¶40.] … even if this expert testimony had been excluded, it would have had no effect on the verdict because of the overwhelming nature of the other evidence presented to the jury.

 

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

 

These decisions may be accessed at

 

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