#26664-a-DG

2014 S.D. 13

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

CHRISTOPHER HATCHETT,                       Defendant and Appellant.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                      THE HONORABLE JANINE KERN
                                Judge

                                   ****


MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


JEREMIAH J. DAVIS
Pennington County Public
 Defender’s Office
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.


                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON JANUARY 14, 2014
                                            OPINION FILED 03/12/14
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GILBERTSON, Chief Justice

[¶1.]         Defendant Christopher Hatchett was convicted of first-degree burglary

in violation of SDCL 22-32-1 and obstructing a law enforcement officer in violation

of SDCL 22-11-6, after fleeing from a police officer into an occupied apartment and

forcing the door closed against the officer. Hatchett appeals, alleging that

obstructing law enforcement is not a sufficient predicate offense to support the

charge of first-degree burglary. Hatchett also claims the trial court erred by

allowing the State to exercise a peremptory strike motivated by race and that the

trial court abused its discretion by not allowing Hatchett to admit into evidence at

trial a letter written by Hatchett to the victims of the burglary. We affirm.

                          Facts and Procedural History

[¶2.]         On April 3, 2012, at approximately 3:45 a.m., Rapid City police officer

Fred Baxter responded to a call directing him to an incident at 402 Denver Street,

apartment 103. The call stated that there was a male wearing a brown jacket and

blue shirt kicking the apartment door and trying to light the door on fire. When

Officer Baxter arrived at the apartment building, he saw Defendant Christopher

Hatchett standing on the other side of an interior staircase doorway. Hatchett

matched the description of the suspect. The two made eye contact through a

window in the door and Hatchett immediately ran toward apartment 104. 1 Officer

Baxter followed after Hatchett, but was unable to apprehend him before he

disappeared inside apartment 104.


1.      Testimony indicates that apartment 104 was across the hall from apartment
        103, where the emergency call originated. Later inspection revealed scorch
        marks on the door of apartment 103.

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[¶3.]         Brittnie and Brandon Schrier lived in apartment 104. As Brittnie

opened her door to leave for work that morning, Hatchett—a complete stranger to

Brittnie—was standing outside the door. Hatchett pushed his way inside the

apartment. Brittnie screamed and ran to the other side of the room. The screaming

awakened Brandon, who came to Brittnie’s aid. As Brittnie yelled at Hatchett to

get out, the Schriers observed Hatchett push against the door and bolt the deadlock.

Brittnie then called 911 to report the intrusion. After bolting the lock, Hatchett

entered a nearby closet and attempted to conceal himself with clothes, blankets,

and other items.

[¶4.]         From outside of apartment 104, Officer Baxter heard Brittnie

screaming. Officer Baxter tried to follow Hatchett into the apartment, but could not

force the door open against Hatchett’s resistance. Once the deadbolt locked, Officer

Baxter stepped back and kicked in the door. Inside the apartment, Officer Baxter

saw Brittnie pointing to the entryway closet, where Officer Baxter found Hatchett

lying on the floor. Officer Baxter placed Hatchett under arrest and escorted him out

of the apartment. At the time of the arrest, Officer Baxter noted a strong odor of

alcohol on Hatchett, but observed that Hatchett could talk clearly and could walk on

his own. 2 Hatchett was charged with first-degree burglary in violation of SDCL 22-

32-1 and obstructing a law enforcement officer in violation of SDCL 22-11-6.

[¶5.]         A jury trial commenced February 8th, 2013. During jury selection,

each side exercised its ten peremptory strikes. The State used one peremptory



2.      Officer Baxter testified that Hatchett seemed intoxicated, but not to a level
        which required placement in detox.

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strike to remove J.D.S., the only Native American member of the jury pool. During

voir dire J.D.S. was asked, “Why do you think we have a law to prevent obstructing

law enforcement?” He answered, “I don’t know . . . I didn’t really pay attention to

the laws. The common intention ones, but just not—I never had to deal with that.”

In his jury questionnaire, J.D.S. also indicated that an immediate family member

had been convicted of a crime other than a traffic offense. Hatchett raised a Batson

challenge to the strike. The State explained that its strike was based on the jury

questionnaire answer and because J.D.S. “stated that he doesn’t pay attention to

the laws or doesn’t follow the laws except for the big ones[.]” The trial court

accepted this race-neutral explanation, and J.D.S. was struck from the jury.

[¶6.]         While in jail awaiting trial, Hatchett wrote a letter to the Schriers. In

the letter, Hatchett apologized for breaking into the apartment. He also mentioned

his past criminal history and offered the Schriers tattoo work in exchange for the

Schriers’ refusal to testify against Hatchett. 3 Prior to trial, Hatchett filed a motion

in limine to prevent the letter from being introduced into evidence. The State in

response argued that the letter should be admissible, because it was highly relevant

to the issue of guilt. After arguments by both sides, the trial court found that

portions of the letter discussing Hatchett’s prior convictions and imprisonment were

too prejudicial. The trial court granted Hatchett’s motion in part, approving only a




3.      Hatchett was separately convicted of witness tampering based on these
        actions.

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redacted and typed version of the letter in which references to prior crimes and

imprisonment were removed.

[¶7.]        At trial, the State did not offer the redacted letter into evidence.

Hatchett sought to call Brittnie Schrier to the stand as a witness and offer the letter

through her. However, the State objected to the evidence as hearsay. The trial

court found that the letter did not fit any hearsay exception when offered by

Hatchett and sustained the State’s objection.

[¶8.]        At the close of the State’s case, Hatchett moved for a judgment of

acquittal, contending as a matter of law that obstructing law enforcement was an

inappropriate predicate crime upon which to base the first-degree burglary charge.

The motion was denied. Because the trial court denied admission of the letter as

offered by Hatchett, the defense rested without calling any witnesses. The jury

found Hatchett guilty on both charges. Hatchett was sentenced to seven years in

the penitentiary for the first-degree burglary conviction, and 90 days in the county

jail for obstructing law enforcement, concurrent with the burglary sentence.

[¶9.]        Hatchett appeals his conviction, raising three issues:

             1.     Whether obstructing a police officer is a sufficient predicate
                    offense to support a charge of first-degree burglary.

             2.     Whether the State engaged in purposeful discrimination by
                    striking the only Native American member of the jury pool.

             3.     Whether the trial court erred in refusing to allow Hatchett to
                    admit his own written statement into evidence.

                                       Analysis

[¶10.]       1.     Whether obstructing a police officer is a sufficient predicate
                    offense to support a charge of first-degree burglary.


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[¶11.]       Hatchett first argues that the trial court erred in denying his motion

for judgment of acquittal. He asserts that obstructing a police officer is not a

sufficient predicate offense to support a charge of first-degree burglary under SDCL

22-32-1. We review issues of statutory interpretation and application as questions

of law under the de novo standard of review. State v. Miranda, 2009 S.D. 105, ¶ 14,

776 N.W.2d 77, 81 (citation omitted). When engaging in statutory interpretation,

“[w]e give words their plain meaning and effect, and read statutes as a whole, as

well as enactments relating to the same subject.” AEG Processing Ctr. No. 58, Inc.

v. S.D. Dep’t of Revenue & Regulation, 2013 S.D. 75, ¶ 17, 838 N.W.2d 843, 849

(citation omitted). “When the language in a statute is clear, certain and

unambiguous, there is no reason for construction, and this Court’s only function is

to declare the meaning of the statute as clearly expressed.” Id. (citation omitted).

[¶12.]       SDCL 22-32-1 provides:

             Any person who enters or remains in an occupied structure, with
             intent to commit any crime, unless the premises are, at the time,
             open to the public or the person is licensed or privileged to enter
             or remain, is guilty of first degree burglary if:

                    (1) The offender inflicts, or attempts or threatens to
                    inflict, physical harm on another;
                    (2) The offender is armed with a dangerous weapon; or
                    (3) The offense is committed in the nighttime.

             First degree burglary is a Class 2 felony.

[¶13.]       The language of SDCL 22-32-1 is clear and unambiguous that the

intent to commit any crime is sufficient. In this case, Hatchett was found by the

jury to have entered or remained in the apartment with the intent to obstruct a




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police officer, a crime under SDCL 22-11-6. 4 The facts presented to the jury support

this finding. Hatchett ran when he saw Officer Baxter, disappeared into apartment

104 to avoid apprehension, and used physical force and the door of the apartment to

prevent Officer Baxter from apprehending him.

[¶14.]         Hatchett argues that obstructing a police officer is a passive or reactive

offense, and it would therefore lead to an absurd or unreasonable result to allow it

to serve as a predicate offense for first-degree burglary. Hatchett asks this Court to

hold that a purely reactive offense cannot serve as a sufficient predicate offense to

charge first-degree burglary. However, when this Court interprets legislation, it

“cannot add language that simply is not there.” Rowley v. S.D. Bd. of Pardons &

Paroles, 2013 S.D. 6, ¶ 12, 826 N.W.2d 360, 365 (citation omitted). A plain reading

reveals the Legislature unambiguously intended to include all crimes as predicate

offenses for first-degree burglary. The Legislature did not carve out any exception




4.       SDCL 22-11-6 provides:

               Except as provided in §§ 22-11-4 and 22-11-5, any person who,
               by using or threatening to use violence, force, or physical
               interference or obstacle, intentionally obstructs, impairs, or
               hinders the enforcement of the criminal laws or the preservation
               of the peace by a law enforcement officer or jailer acting under
               color of authority, or intentionally obstructs, impairs, or hinders
               the prevention, control, or abatement of fire by a firefighter
               acting under color of authority, or intentionally obstructs
               emergency management personnel acting under color of
               authority, is guilty of obstructing a law enforcement officer,
               firefighter, or emergency medical technician. Obstructing a law
               enforcement officer, jailer, firefighter, or emergency medical
               technician is a Class 1 misdemeanor.


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in SDCL 22-32-1 for what Hatchett labels “reactive crimes” and we therefore will

not read that exception into the statute. 5

[¶15.]         Hatchett cites to two opinions where this Court upheld burglary

convictions on appeal, noting that in both cases the underlying crimes were

volitional in nature, rather than reactive. See State v. Jucht, 2012 S.D. 66, 821

N.W.2d 629 (malicious intimidation or harassment); State v. Burdick, 2006 S.D. 23,

712 N.W.2d 5 (theft). However, these cases do not give any indication that

obstructing law enforcement is or should be excluded from the broad term “any

crime” under SDCL 22-32-1. Nor does Hatchett cite to any other case law which

would lead us to believe that it was absurd or unreasonable for the Legislature to

intend on punishing the entry with intent to commit the crime of obstructing a law

enforcement officer. As is evident from the facts of this case, breaking into

another’s home with the intent to obstruct a law enforcement officer “creates

elements of alarm and danger to persons who may be present in a place where they

should be entitled to freedom from intrusion.” See State v. Wentz, 68 P.3d 282, 289

n.1 (Wash. 2003) (Madsen, J., concurring) (citation omitted). Hatchett gives us no

reason to conclude that the Legislature did not intend to protect against this harm.

[¶16.]         The cases cited by Hatchett from other jurisdictions are similarly

unpersuasive. Hatchett first cites State v. Raines, 706 N.E.2d 414 (Ohio Ct. App.

1997), in which an Ohio appellate court reversed a conviction for burglary based on



5.       Hatchett gives no standard under which to evaluate whether a crime is
         “reactive or passive” or “volitional.” Forcefully pushing a door closed against
         a police officer and then bolting the lock seems to take some degree of
         volition.

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the predicate offense of resisting arrest. However, the burglary conviction in Raines

was not reversed because of the reactive nature of the crime of resisting arrest, but

instead on the fact that the defendant was not under arrest, nor was there probable

cause to arrest the defendant. Id. at 432. Under Ohio law, the elements of the

predicate offense of resisting arrest were therefore not satisfied. See id. In this

case, Hatchett does not allege that the elements of the underlying offense were not

met.

[¶17.]          Hatchett also cites State v. Devitt, 218 P.3d 647 (Wash. Ct. App. 2009),

which reversed a conviction based on similar facts as the case at bar. However, the

court in Devitt relied on Washington’s definition of residential burglary that

required the predicate crime to be “a crime against a person or property,” and the

court found that Devitt had instead committed a crime against the government by

obstructing an officer. See id. at 648-49. The scope of predicate crimes in

Washington’s burglary statute is clearly narrower than in South Dakota’s statute,

and thus leads to a different result. See id. at 648; SDCL 22-32-1.

[¶18.]          Under the plain language of SDCL 22-32-1, obstructing law

enforcement fits within the scope of “any crime” and is thus an appropriate

predicate offense to support the charge of first-degree burglary. We therefore

conclude that the trial court did not err in denying Hatchett’s motion for judgment

of acquittal.

[¶19.]          2.    Whether the State engaged in purposeful discrimination by
                      striking the only Native American member of the jury pool.

[¶20.]          Hatchett next alleges that the trial court erred in allowing the State to

use a peremptory strike against potential juror J.D.S. He asserts the State

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exercised the strike based on J.D.S.’s race, violating Hatchett’s equal protection

rights under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69

(1986).

[¶21.]       We engage in a three-part test to determine whether a peremptory

strike was improperly based on purposeful racial discrimination:

             First, the defendant must make out a prima facie case by
             showing that the totality of the relevant facts gives rise to an
             inference of discriminatory purpose. Second, once the defendant
             has made out a prima facie case, the burden shifts to the State
             to explain adequately the racial exclusion by offering
             permissible race-neutral justifications for the strikes. Third, if a
             race-neutral explanation is tendered, the trial court must then
             decide whether the opponent of the strike has proved purposeful
             racial discrimination.

State v. Guthmiller, 2014 S.D. 7, ¶ 12, __ N.W.2d __ (quoting State v. Scott, 2013

S.D. 31, ¶ 16, 829 N.W.2d 458, 465-66). “The finding of intentional discrimination is

a factual determination. Accordingly, we review an appeal alleging a Batson

violation for the State’s use of peremptory challenges for clear error.” State v. Ryan,

2008 S.D. 94, ¶ 6, 757 N.W.2d 155, 158 (citations omitted).

[¶22.]       The trial court found in the first step of the analysis that Hatchett

established a prima facie case of discrimination because Hatchett is a Native

American and J.D.S. was the only Native American in the jury pool. The burden

then shifted to the State to offer a permissible race-neutral explanation for striking

the juror. Scott, 2013 S.D. 31, ¶ 16, 829 N.W.2d at 465 (citations omitted). Here,

the State explained that it moved to strike J.D.S. because his juror questionnaire

indicated that J.D.S. had family members or friends that have faced prior criminal

convictions other than a traffic offense. The State also explained that during


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questioning J.D.S. indicated that “he doesn’t pay attention to the law or doesn’t

follow the laws except for the big ones[.]”

[¶23.]       Presented with a prima facie case by Hatchett and a race-neutral

explanation by the State, the trial court was then required to “assess the veracity of

the State’s race-neutral reasons and determine whether [Hatchett] met his burden

of proving purposeful discrimination.” Id. ¶ 21 (citation omitted). Under the third

part of the Batson analysis, the “court’s findings are afforded great deference, as the

analysis depends highly on credibility.” Id. ¶ 18 (citing United States v. Maxwell,

473 F.3d 868, 872 (8th Cir. 2007)). Under this step, the trial court determined that

the State struck J.D.S. based on race-neutral reasons. Specifically, the court noted

that J.D.S.’s jury questionnaire answer indicating family members being convicted

of crimes and his answer about not paying attention to the laws were both

acceptable race-neutral explanations.

[¶24.]       Hatchett argues that these reasons were clearly pretextual excuses to

remove the only Native American member of the venire, and the trial court’s finding

to the contrary was clearly erroneous. He asserts that the exclusion of J.D.S. was

the product of a “surgical effort to pose a technical legal question to the only Native

American member of the venire.” Hatchett argues J.D.S. was singled out in this

technical legal questioning. However, the record reflects otherwise. At least one

other juror was asked about why there would be a law preventing the obstruction of

a law enforcement officer. Other jurors were asked about the meaning of burglary

and intent. Thus, J.D.S. does not appear to have been singled out in what Hatchett

describes as technical legal questioning.


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[¶25.]       Hatchett also contends that J.D.S.’s answers reflected at most a

disinterest or lack of knowledge of the law and that the State’s concerns over his

answers are nothing more than a sham to hide discriminatory intent. However,

J.D.S.’s answer went beyond lack of technical legal knowledge. He stated, “I didn’t

really pay attention to the laws. The common intention ones, but just not—I never

had to deal with that.” From a cold record, it appears that “not paying attention to

the laws” could mean, as Hatchett contends, that J.D.S. simply acknowledged that

he was not law trained. However, it could also show some degree of lack of respect

for, or disregard of the law. The State claimed concern with the latter explanation,

and the trial court accepted this explanation for the peremptory strike. This Court

gives deference to the trial court’s determination that the explanation was credible.

See State v. Roach, 2012 S.D. 91, ¶ 34, 825 N.W.2d 258, 267-68.

[¶26.]       Hatchett also argues that there was no showing by the State that any

non-Indians were removed from the venire because of family members or friends

being convicted of crimes. However, under the final step of the Batson analysis,

“the ultimate burden of persuasion regarding racial motivation rests with, and

never shifts from, the opponent of the strike.” Rice v. Collins, 546 U.S. 333, 338,

126 S. Ct. 969, 974, 163 L. Ed. 2d 824 (2006) (citation omitted). See also Ryan, 2008

S.D. 94, ¶ 14, 757 N.W.2d at 159. Hatchett did not make this argument below when

opposing the State’s use of its peremptory strike, nor does he direct this Court to

any place in the record where such a discrepancy exists. Hatchett therefore fails to

prove purposeful discrimination based on this alleged discrepancy.




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[¶27.]       Giving deference to the trial court’s determinations of credibility, we

conclude that Hatchett has not carried his burden of proving that the State’s use of

its peremptory strike against J.D.S. was racially motivated. Accordingly, we

conclude that Hatchett’s equal protection rights were not violated.

[¶28.]       3.     Whether the trial court erred in refusing to allow Hatchett to
                    admit his own written statement into evidence.

[¶29.]       Last, Hatchett argues that the trial court erred in denying the

admission of Hatchett’s letter to the Schriers into evidence. “The trial court’s

evidentiary rulings are presumed correct and will not be overturned absent a clear

abuse of discretion.” State v. Yuel, 2013 S.D. 84, ¶ 8, 840 N.W.2d 680, 683 (citation

omitted). To overturn an evidentiary ruling, any error demonstrated must be

shown to be prejudicial error. Id. (citation omitted).

[¶30.]       On appeal, Hatchett asserts that the State should have been judicially

estopped from arguing against the admission of the redacted version of Hatchett’s

letter to the Schriers, because the State had previously fought to allow the letter

into evidence. Hatchett argues that by not allowing Hatchett to introduce the letter

into evidence, he was denied the due process of law, because the actions of the State

amounted to unfair surprise. Hatchett’s arguments fail to convince this Court that

the trial court abused its discretion and committed prejudicial error.

[¶31.]       First, although the court found the evidence was relevant, Hatchett

offers no hearsay rule exception under which he should be allowed to offer the letter

into evidence. Hearsay is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” SDCL 19-16-1(3) (Rule 801(c)). The term “statement”

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includes both oral and written assertions. SDCL 19-16-1(1) (Rule 801(a)). Hearsay

is generally not admissible. SDCL 19-16-4 (Rule 802).

[¶32.]         Hatchett’s letter to the Schriers, if offered by the State, would have

been admissible as an admission of a party opponent. See SDCL 19-16-3 (Rule

801(d)(2)). However, the same letter offered by Hatchett did not fit into that

exception. Instead, it fell squarely within the definition of inadmissible hearsay

because it was being offered to prove the truth of the matter asserted. 6 The trial

court explained this distinction, and correctly sustained the State’s objection to the

evidence as offered by Hatchett.

[¶33.]         Second, judicial estoppel does not apply to this controversy. Judicial

estoppel is applied only when four elements are present:

               (1) A party’s inter-proceeding inconsistency must be about a
               matter of fact, not law.
               (2) The position the party took in the prior proceeding must have
               been a significant factor there.
               (3) The two positions must be absolutely irreconcilable.
               (4) The prior position must not have been taken as a result of
               mistake, inadvertence or fraud upon the party taking the
               position.

State v. St. Cloud, 465 N.W.2d 177, 180 (S.D. 1991). In this case, Hatchett fails to

satisfy the first element, because he has not demonstrated any inconsistency by the

State regarding a matter of fact. The only inconsistency alleged is in the State’s

trial strategy. The State initially wanted the entire letter admitted into evidence,


6.       See United States v. White Horse, 177 F. Supp. 2d 973, 977 (D.S.D. 2001)
         (stating that prior statements consistent with not guilty plea are hearsay);
         United States v. Chard, 115 F.3d 631, 635 (8th Cir. 1997) (defendant’s
         attempt to introduce out-of-court exculpatory statements excluded as
         hearsay); United States v. Waters, 194 F.3d 926, 931 (8th Cir. 1999) (same).


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but it ultimately lost that battle. Hatchett cites no authority that would prevent

the State from adjusting its trial strategy after the unfavorable evidentiary ruling

required significant redaction. 7

[¶34.]         Hatchett cites State v. Blem, 2000 S.D. 69, 610 N.W.2d 803, to support

his proposition that the State should be estopped from arguing for exclusion of the

letter after fighting to have the letter deemed admissible. However, Hatchett’s

reliance on Blem is misplaced. In Blem, the court granted a motion in limine

preventing the defense from offering any testimony or evidence of defendant’s

mental illness. Id. ¶ 61. The defense complied with the ruling, but the State then

questioned the defendant about his mental illness during cross-examination. Id. ¶

62. The Court concluded that “the State’s violation of its motion in limine and its

conduct during closing argument constitute[d] prejudicial error resulting in an

unfair trial.” Id. ¶ 69. The Court’s decision in Blem was not based on a theory of

estoppel, as advanced by Hatchett, but it was instead based on the State’s direct

violation of its own motion in limine prohibiting discussion of a certain issue at

trial. Id. No such violation occurred in this case. Because the letter constituted

hearsay not within any exception and judicial estoppel does not apply, the trial

court did not abuse its discretion by preventing Hatchett from introducing this

hearsay evidence to the jury.




7.       Hatchett argues generally that the State cannot “have it both ways”—
         fighting for inclusion then fighting for exclusion of the letter. Under this
         theory, however, we see no reason why Hatchett should instead be able to
         “have it both ways.” It was Hatchett who first moved to exclude the letter
         from evidence.

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                                     Conclusion

[¶35.]       Under the clear and unambiguous language of SDCL 22-32-1, the

intent to commit “any crime” includes the intent to commit the crime of obstructing

a police officer. The trial court therefore did not err in denying Hatchett’s motion

for judgment of acquittal. Furthermore, we conclude there was no clear error in the

trial court’s determination that the State struck juror J.D.S. for race-neutral

reasons. Finally, the trial court did not abuse its discretion by excluding Hatchett’s

letter to the Schriers as hearsay evidence. For these reasons, we affirm.

[¶36.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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