#27325-a-GAS
2016 S.D. 34

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

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

      v.

BRAIDEN MCCAHREN,                            Defendant and Appellant.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                ****
                     THE HONORABLE JOHN L. BROWN
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.

MICHAEL J. BUTLER
Sioux Falls, South Dakota
and
CLINT L. SARGENT
RALEIGH HANSMAN of
Meierhenry & Sargent, LLP
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                    ****

                                             ARGUED ON
                                             JANUARY 13, 2016
                                             OPINION FILED 04/20/16
#27325

SEVERSON, Justice

[¶1.]        A jury found Braiden McCahren guilty of second-degree murder after

he fatally shot Dalton Williams. The jury also found him guilty of aggravated

assault of Tyus Youngberg. On appeal, McCahren asserts that a jury instruction on

second-degree murder violated his constitutional rights. He further asserts that the

circuit court improperly limited his cross-examination of a State witness and

improperly refused to suppress McCahren’s statements made to a roommate at a

juvenile facility and his statements made to an officer immediately after the

shooting. Finally, McCahren asserts that his sentence for aggravated assault is

cruel and unusual thereby violating the Eighth Amendment. We affirm.

                                    Background

[¶2.]        On September 23, 2014, a jury found McCahren guilty of second-degree

murder of Dalton Williams and aggravated assault of Tyus Youngberg. The jury

heard testimony from Tyus Youngberg. He testified that the death was a result of

an incident on December 18, 2012. Youngberg testified that McCahren, Youngberg,

and Williams were at McCahren’s house when McCahren went to a gun rack and

grabbed a shotgun, shouldering it as if to shoot something. Youngberg initially told

the police that they were messing around and that the shooting was accidental. He

later testified at trial that it was intentional. He further testified that McCahren

pulled the trigger of the gun as he was pointing it at Youngberg, but the gun just

clicked. According to Youngberg, McCahren then opened a drawer and pulled out a

20-gauge shell. At this point, Youngberg tried to leave the house through a sliding

glass door. In order to get to the door, he went past Williams, who was now


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between Youngberg and McCahren. Youngberg heard another click but no

discharge occurred. Youngberg testified that he was unable to open the glass door,

so he intended to run to the garage but Williams was in his path. As he was

attempting to move Williams out of the way, the gun held by McCahren discharged.

The shot hit Williams, who subsequently died. McCahren contends the shooting

was an accident.

[¶3.]        Youngberg called 911 to report the shooting. Upon arrival, law

enforcement questioned Youngberg and McCahren about the incident. Officer

Martin Waller interviewed McCahren in a patrol car, while another officer

interviewed Youngberg. In the patrol car, Waller asked McCahren to tell him what

happened. McCahren told Waller that he was messing around with a gun that he

thought was empty but the gun discharged and a shot hit Williams. After obtaining

some of the details of the incident, Waller asked McCahren if he had contacted his

father yet. Upon McCahren’s negative response, Waller contacted McCahren’s

father. Waller informed the father, Kit McCahren, about the incident and then

allowed McCahren to speak with his father. Later, upon learning that the incident

may not have been an accident, Waller placed McCahren under arrest.

[¶4.]        As a result of the incident, McCahren was indicted for first-degree

murder, attempted first-degree murder, and aggravated assault. At the conclusion

of a jury trial on those three charges, the State requested that the jury also receive

an instruction for second-degree murder. The State made the request during the

settling of jury instructions, after all evidence from the prosecution and defense had

been presented to the jury, and 90 minutes before closing arguments. Over defense


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objection, the court granted the State’s request and instructed the jury on second-

degree murder. The jury found McCahren guilty of second-degree murder of

Williams and aggravated assault of Youngberg. The court sentenced McCahren to

twenty-five years with fifteen years suspended for second-degree murder and fifteen

years for aggravated assault, to run concurrently with the second-degree murder

sentence. McCahren now appeals the court’s decision to instruct the jury on the

offense of second-degree murder. McCahren further appeals the court’s decision to

limit the defense’s cross-examination of one of the State’s witnesses, the court’s

refusal to suppress McCahren’s statements made to a roommate at Western Area

Juvenile Services Center, and the court’s refusal to suppress McCahren’s

statements made to Officer Waller in the patrol car. Lastly, McCahren asserts that

the imposition of the maximum sentence for the aggravated-assault conviction is

cruel and unusual.

                                      Analysis

Second-degree murder instructions

[¶5.]        “In general, we ‘review a trial court’s decision to grant or deny a

particular instruction under the abuse of discretion standard.’” State v. Waloke,

2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 112-13 (quoting State v. Roach, 2012 S.D. 91, ¶

13, 825 N.W.2d 258, 263). Questions of law are reviewed de novo. See id. at 113.

[¶6.]        McCahren asserts that the court’s decision to instruct the jury on

second-degree murder deprived him of his constitutional right to notice of the

charges against him and his right to defend against such because second-degree

murder was not charged in the indictment.       He relies on State v. Lohnes, 324


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N.W.2d 409, 412 (S.D. 1982), in which the lower court, over the defendant’s

objection, instructed on second-degree murder despite that offense not being

charged. In Lohnes, we determined that such an approach violated the defendant’s

constitutional right to be informed of the nature and cause of the accusation against

him. Id. Since Lohnes was decided, the jurisprudence surrounding homicide

charges and lesser-included offenses in homicide trials has changed. Therefore, the

question in front of us today is the applicability of Lohnes in light of our evolved

statutes and precedent on lesser-included offenses, specifically with regard to the

differing degrees of homicide.

[¶7.]        Article VI, § 7 of our constitution provides an accused with the right to:

             defend in person and by counsel; to demand the nature and
             cause of the accusation against him; to have a copy thereof; to
             meet the witnesses against him face to face; to have compulsory
             process served for obtaining witnesses in his behalf, and to a
             speedy public trial by an impartial jury of the county or district
             in which the offense is alleged to have been committed.

S.D. Const. art. VI, § 7. The indictment’s “principal office . . . is to inform the

accused of the nature and cause of the accusation against him; to be thus informed

being one of the accused’s most important constitutional rights.” Lohnes, 324

N.W.2d at 412 (quoting State ex. rel. Kotilinic v. Swenson, 18 S.D. 196, 202, 99 N.W.

1114, 1115 (1904)). Courts have explained that “[a] lesser included offense need not

be charged in an indictment, as it is already included in the offense charged.”

United States v. McGeehan, 824 F.2d 677, 679 n.2 (8th Cir. 1987) (citing United

States v. Martel, 792 F.2d 630, 638 (7th Cir. 1986)); accord Fed. R. Crim. P. 31(c) (“A

defendant may be found guilty of any of the following: (1) an offense necessarily

included in the offense charged; (2) an attempt to commit the offense charged; or (3)

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an attempt to commit an offense necessarily included in the offense charged, if the

attempt is an offense in its own right.”); SDCL 23A-26-8 (Rule 31 (c)) (“A defendant

may be found guilty of an offense necessarily included in the offense charged[.]”).

[¶8.]         We have applied the elements test to determine which offenses are

lesser-included. See Waloke, 2013 S.D. 55, ¶ 29, 835 N.W.2d at 113 (outlining the

history of this Court’s treatment of lesser-included offense instructions). The

elements test is satisfied where:

              (1) all of the elements of the included offense are fewer in
              number than the elements of the greater offense;[ 1] (2) the
              penalty for the included lesser offense must be less than that of
              the greater offense; and (3) both offenses must contain common
              elements so that the greater offense cannot be committed
              without also committing the lesser offense.

State v. Giroux, 2004 S.D. 24, ¶ 5, 676 N.W.2d 139, 141 (quoting State v. Hoadley,

2002 S.D. 109, ¶ 61, 651 N.W.2d 249, 263). Once the elements test is met, an

instruction on the lesser-included offense may only be given if some evidence was

presented that supports the instruction. Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d

at 264. Our elements test “provides certainty and predictability in determining

lesser-included offenses and is compatible with the constitutional principles of

double jeopardy, due process, and notice while maintaining mutuality.” Id. ¶ 66,

651 N.W.2d at 265 (quoting Tim Dallas Tucker, State v. Black: Confusion in South

Dakota’s Determination of Lesser Included Offenses in Homicide Cases, 41 S.D. L.

Rev. 465, 501 (1996)) (adopting elements test). “In 2005, the Legislature validated


1.      If two homicide offenses contain common elements but require differing levels
        of intent, this part of the test is also met where the mens rea requirement of
        a lesser crime is a lesser element contained within the greater offenses’s
        mens rea requirement. See infra ¶¶ 10-11.

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this approach . . . in homicide cases by codifying the possible lesser included

offenses for various degrees of murder and manslaughter.” Waloke, 2013 S.D. 55, ¶

29, 835 N.W.2d at 113 (citing SDCL 22-16-20.1). The Legislature provided that

“[m]urder in the second degree is a lesser included offense of murder in the first

degree.” SDCL 22-16-20.1. 2 It also codified the factual requirement in SDCL 22-16-

20.2. 3

[¶9.]           Our adoption of the elements test and the Legislature’s codification of

the lesser-included murder and manslaughter offenses occurred well after our

Lohnes decision, where we were concerned that second-degree murder was an

offense never charged that had “distinctly different elements than first-degree

murder.” Lohnes, 324 N.W.2d at 412. We rejected the State’s argument in Lohnes

that a lesser-included instruction was appropriate due to SDCL 23A-26-7, 4 which




2.        SDCL 22-16-20.1 provides in full:
                Murder in the second degree is a lesser included offense of
                murder in the first degree. Manslaughter in the first degree is a
                lesser included offense of murder in the first degree and murder
                in the second degree. Manslaughter in the second degree is a
                lesser included offense of murder in the first degree, murder in
                the second degree, and manslaughter in the first degree.

3.        SDCL 22-16-20.2 states:
                A lesser included offense instruction shall be given at any
                homicide trial whenever any facts are submitted to the trier of
                fact which would support such an offense pursuant to this
                chapter. The state and the defendant each have the separate
                right to request a lesser included offense instruction. The
                failure to request a lesser included offense instruction
                constitutes a waiver of the right to such an instruction.

4.        SDCL 23A-26-7 stated in 1982, as it does today:
                                                                    (continued . . .)
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mandates that the jury find the degree of the crime that it convicts the defendant of

having committed. Id. We explained that the statute “ha[s] no effect on the

elements of the first and second-degree murder charge.” Id. McCahren points out

that the elements of first and second-degree murder remain different today because

first-degree murder requires premeditation. SDCL 22-16-4(1). In contrast, second-

degree murder requires a depraved mind. SDCL 22-16-7.

[¶10.]       McCahren contends that as a result of those “different” elements,

second-degree murder is not a true lesser-included offense. Nonetheless, as Judge

Tucker explained, even under the elements test, second-degree murder is a lesser

included offense of first-degree murder because we consider the mens rea

requirement of depraved mind as a less culpable mens rea contained within the

greater offense’s requirement of premeditation—“evincing a depraved mind,

regardless of human life, although without any premeditated design to effect death

is a lesser mental state than premeditation.” Tucker, State v. Black, 41 S.D. L. Rev.

at 496 (quotation marks omitted) (footnote omitted). We adopted this approach to

the mens rea requirements in Hoadley, 2002 S.D. 109, ¶ 61 n.12, 651 N.W.2d at 263

n.12. And when considering whether a second-degree murder or manslaughter

instruction should be given on the charged offense of first-degree murder, we have

previously determined that “the elements test was met[.]” Id. ¶ 64, 651 N.W.2d at

_________________________________________________
(. . . continued)
               Whenever a crime is distinguished by degrees, a jury, if it
               convicts an accused, shall find the degree of the crime of which
               he is guilty and include that finding in its verdict. When there
               is a reasonable ground of doubt as to which of two or more
               degrees an accused is guilty, he can be convicted of only the
               lowest degree.

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264. We also explained, two years later, in Giroux, “[t]he use of different words does

not necessarily eliminate a crime as a lesser-included-offense. Our analysis . . . uses

the degree of culpability analysis . . . .” 2004 S.D. 24, ¶ 8, 676 N.W.2d at 142. As

soon as we adopted such an approach, the holding in Lohnes was overruled to the

extent that it determined that second-degree murder could not be a lesser-included

offense of first-degree murder due to the differing mens rea elements of the two

crimes. See Lohnes, 324 N.W.2d at 412.

[¶11.]       It is true, as McCahren states, that a statute cannot override

constitutional protections. However, our elements test and statute operate to

provide a defendant with the notice he or she is entitled. Under SDCL 22-16-20.2, a

lesser-included instruction can only be given to the jury if there are “any facts . . .

which would support such an offense[.]” Although a court may need to wait until

the close of evidence to determine whether a lesser-included instruction is

warranted, such an approach does not deprive a defendant of constitutionally

required notice. Our elements test established a number of years ago that second-

degree murder is a lesser-included offense of first-degree murder, and SDCL 22-16-

20.1 removed any doubt regarding such. Due process is fulfilled under our approach

to lesser-included homicide offenses because each lesser offense has lesser elements,

either in number or degree of culpability, than the greater offense. The greater

offense cannot be committed without also committing the lesser offense. Thus, a

defendant will be able to anticipate and defend against lesser-included offenses

during preparation and trial on the greater offense because the lesser-included is

“already included in the offense charged.” See McGeehan, 824 F.2d at 679 n.2.


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Further, SDCL 22-16-20.2 ensures that an instruction will not be given if no facts

support the instruction. Such an approach satisfies due process concerns. See

Hoadley, 2002 S.D. 109, ¶ 66, 651 N.W.2d at 265.

[¶12.]       Along with SDCL 20-16-20.1, -20.2, our law provides that “[a]

defendant may be found guilty of an offense necessarily included in the offense

charged[.]” SDCL 23A-26-8 (Rule 31(c)) (emphasis added). The statute clearly

contemplates uncharged offenses. Our approach is not unique. The Supreme

Court, when analyzing the federal rule of criminal procedure 31(c), which mirrors

ours, adopted the elements test, in part, because it allows “both sides to know in

advance what jury instructions will be available and to plan their trial strategies

accordingly.” Schmuck v. United States, 489 U.S. 705, 720, 109 S. Ct. 1443, 1453,

103 L. Ed. 2d 734 (1989).

[¶13.]       In addition to the United States Supreme Court, other courts have

addressed the question of when a lesser-included offense instruction is appropriate.

See State v. Rodriguez, 429 A.2d 919, 929 (Conn. 1980) (collecting cases and noting

that “courts consistently hold that where the evidence supports an instruction on a

lesser degree of homicide than that charged, it is error to refuse to give such an

instruction”). The Connecticut Supreme Court in Rodriguez faced the same issue

that we now address. Id. Rodriguez was charged with murder, which required the

specific intent to cause the death of another, and the trial court also instructed on

manslaughter in the first and second-degree along with criminally negligent

homicide, all of which required a state of mind different than intent to cause death.




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Id. at 927. Thus, he alleged that, by giving additional instructions, the trial court

violated his right to be informed of the crime he allegedly committed. Id.

[¶14.]        The Connecticut Supreme Court held:

              Where the state is faced with a homicide prosecution, it may, in
              good faith and where the circumstances reasonably warrant,
              assume that an accused acted with the most culpable state of
              mind. But where the evidence is reasonably susceptible of
              another conclusion, the jury, or three judge panel, as the case
              may be . . . should not be bound by that assumption and forced
              by its verdict to choose only between the offense with the most
              culpable state of mind and acquittal. Such a result would limit
              the jury’s function of determining questions of fact and
              undermine a defendant’s right to a trial by jury. . . . Permitting
              the jury to find the defendant guilty of a lesser charge of
              homicide than that charged, where the evidence supports such a
              finding, does not violate the defendant’s sixth amendment right
              to notice. By the charge on the greater offense of murder, the
              defendant is put on notice that he will be put on trial for his
              action in causing the death of another person. Thus, having
              been given notice of the most serious degree of culpable intent
              by the murder indictment, he is implicitly given notice of those
              lesser included homicides that require a less serious degree of
              culpable intent.

Id. at 929 (citations omitted). The Connecticut Supreme Court also explained that

its approach was consistent with the Model Penal Code (MPC). Id. at 930. See

Model Penal Code § 1.07 (4)(c) (emphasis added) (“A defendant may be convicted of

an offense included in an offense charged in the indictment (or the information). An

offense is so included when: (c) it differs from the offense charged only in the respect

that a less serious injury or risk or injury to the same person, property or public

interest or a lesser kind of culpability suffices to establish its commission.”); see also

State v. Rush, 50 S.W.3d 424, 431-32 (Tenn. 2001) (applying a modified version of

the MPC and holding that “the trial court has a duty to instruct the jury regarding

all applicable lesser-included offenses regardless of whether the defendant requests

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the instruction.” Thus, the trial court erred because it did not instruct the jury of

the lesser-included crime of reckless endangerment even though the facts supported

the charge and reckless endangerment requires a lesser risk of harm and “lesser

degree of culpability than the knowing intent to kill contemplated by the offense of

second degree murder[.]”). Accordingly, McCahren had sufficient notice that

second-degree murder instructions may be given by the court.

[¶15.]         McCahren reasons that we should prospectively apply our decision.

McCahren maintains that he should not be punished for reversal of precedent that

is more than 30 years old. However, as we noted above, though Lohnes validly

holds that a defendant has the right to notice of the charges he faces, the holding in

Lohnes on lesser-included instructions for first-degree and second-degree murder

became questionable at least in 2002 when we adopted the elements test with Judge

Tucker’s recommended approach to the mens rea elements. Supra ¶ 10. And in

2005, the Legislature explicitly provided that second-degree murder is a lesser-

included offense of first-degree murder. It is important to note that the statute

provides that when the facts support the instruction in a homicide trial, the court

shall give a lesser-included instruction, which may be requested by either the State

or defendant. SDCL 22-16-20.2. Thus, under the law as it has existed for over a

decade, McCahren cannot claim surprise that second-degree murder would be

considered a lesser-included offense for which the jury could be instructed. 5



5.       On August 28, 2014, the State moved to exclude a lessor-included instruction
         on second-degree manslaughter. In its motion, the State asserted that no
         facts supported such an instruction. The court and counsel addressed the
         motion at a pretrial hearing on September 4, 2014. Although the motion
                                                                   (continued . . .)
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[¶16.]       Because second-degree murder instructions were warranted in this

case if some facts supported it, we next consider McCahren’s argument that the

facts were insufficient to warrant the circuit court giving the instruction to the jury.

Like the Hoadley court, we emphasize, “the question is not . . . whether there was

sufficient evidence[,]” but whether there is some evidence. 2002 S.D. 109, ¶ 64 &

n.14, 651 N.W.2d at 264 & n.14. We review the court’s decision for an abuse of

discretion. Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d at 112-13. In this case,

Youngberg testified that after the gun, which McCahren shouldered and pointed at

Youngberg, failed to discharge, McCahren took a shell from a drawer and loaded the

shotgun. Once again, McCahren pulled the trigger with the shotgun shouldered

and pointed in the direction of Youngberg and Williams. This type of conduct

supports the court’s decision that the evidence supported instructing the jury on

second-degree murder. We do not find an abuse of discretion. The law and facts

supported a lesser-included offense instruction for second-degree murder.

[¶17.]       Lastly, McCahren asserts that the decision to instruct on second-

degree murder deprived him of his right to testify on his own behalf, propose

_________________________________________________
(. . . continued)
         addressed second-degree manslaughter rather than second-degree murder,
         the defense was aware of SDCL 22-16-20.1 at the pretrial hearing. Defense
         counsel argued that it was premature to address lesser-included offenses
         because the “sole test on homicide lesser includeds [is whether] there’s some
         evidence that would support [the] giving of it.” The State agreed that such a
         motion was premature but stated that “it was something that [the State]
         wanted to bring to everybody’s attention rather than doing it in the middle of
         the trial when instructions are settled so it gives time for people to research
         the issue.” The court ruled that “it’s well to have raised the issue and put
         everyone on notice as to the potential for that. But whether such an
         instruction will be requested or whether any evidence at trial would tend to
         support such an instruction will await for settling instructions at trial.”

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alternative jury instructions, and call an expert witness on his psychological status.

McCahren asserts that he was precluded from offering instructions that explain the

difference between the differing counts of homicide. However, he has not argued

that the circuit court’s instructions misstated the law. “We consider jury

instructions ‘as a whole, and if the instructions when so read correctly state the law

and inform the jury, they are sufficient. This is a question of law reviewed de

novo.’” State v. Birdshead, 2015 S.D. 77, ¶ 14, 871 N.W.2d 62, 70 (quoting Waloke,

2013 S.D. 55, ¶ 28, 835 N.W.2d at 113). From our review of the record, the court’s

instructions were sufficient. Additionally, because we have determined that

McCahren had notice that second-degree-murder instructions could be given in this

case, we do not find merit in McCahren’s argument that he was prevented from

taking the stand or presenting additional expert testimony.

Testimony and cross-examination of T.D.

[¶18.]       Next, we address two issues that McCahren raises regarding the

testimony of one of the State’s witnesses. The State’s witness, T.D., was

McCahren’s roommate while McCahren was at a juvenile facility in Pennington

County. McCahren told T.D. details of the shooting, and McCahren now appeals

admission of those statements at trial. He alleges that the statements are subject

to the exclusionary rule because they are the result of illegal government activity.

[¶19.]       In March 2013, pursuant to a court order, McCahren was transferred

to the Pennington County Juvenile Services Center. The court ordered a

psychological evaluation by Dr. Scovel. After the evaluation, McCahren was to

return to the Hughes County Juvenile Services Center. McCahren arrived at the


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Pennington facility on March 14, 2013, and he left on March 25, 2013. T.D. roomed

with McCahren for part of the time that McCahren was at the facility.

[¶20.]       In September 2013, the circuit court denied McCahren’s motion to

transfer proceedings to juvenile court. Part of its decision was based on Dr. Scovel’s

testimony and the report of her evaluation of McCahren. McCahren sought and was

granted intermediate appeal, where he alleged that Dr. Scovel’s examination of him

exceeded the scope of an agreement between the State’s Attorney and defense

attorneys. The State’s Attorney and defense had agreed that Dr. Scovel would not

inquire into the December incident. We issued an order reversing the September

order and remanding for the court to reconsider the motion without Dr. Scovel’s

report or testimony. We held, “It appears that Defendant’s Fifth and Sixth

Amendment rights were violated by breach of the agreement between the State and

defense counsel on the scope of Dr. Scovel’s examination of Defendant.”

[¶21.]       McCahren contends that T.D.’s testimony regarding conversations that

McCahren had with T.D. should be suppressed as “fruit of the poisonous tree.” See

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). “The

exclusionary rule prohibits introduction into evidence of tangible materials seized

during an unlawful search, and of testimony concerning knowledge acquired during

an unlawful search.” State v. Heney, 2013 S.D. 77, ¶ 9, 839 N.W.2d 558, 562

(quoting State v. Boll, 2002 S.D. 114, ¶ 19, 651 N.W.2d 710, 716). “The exclusionary

rule reaches not only primary evidence obtained as a direct result of an illegal

search or seizure, but also evidence later discovered and found to be derivative of an

illegality or ‘fruit of the poisonous tree.’” Id. (quoting Segura v. United States, 468


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U.S. 796, 804, 104 S. Ct. 3380, 3385, 82 L. Ed. 2d 599 (1984)). However,

“[s]uppression is not justified unless the challenged evidence is in some sense the

product of illegal governmental activity.” Id. ¶ 11 (quoting Segura, 468 U.S. at 815,

104 S. Ct. at 3391). The party seeking to suppress the evidence has the burden “to

establish that such evidence was illegally seized.” Id. (quoting State v. Rigsbee, 89

S.D. 360, 376, 233 N.W.2d 312, 321 (1975)). This rule has been applied to Fifth and

Sixth Amendment violations, as occurred in this case. See Nix v. Williams, 467 U.S.

431, 442, 104 S. Ct. 2501, 2508, 81 L. Ed. 3d 377 (1984).

[¶22.]       We previously determined in the intermediate appeal of the transfer

hearing decision that the scope of the examination exceeded McCahren’s

constitutional rights. Therefore, in order to meet his burden, McCahren needs to

initially demonstrate that there is a “factual nexus between the constitutional

violation and the challenged evidence” and that the illegality “is at least the ‘but for’

cause of the discovery of the evidence.” Heney, 2013 S.D. 77, ¶¶ 11-12, 839 N.W.2d

at 562. However, “‘but-for causality is only a necessary, not a sufficient, condition

for suppression’ under the fruit of the poisonous tree doctrine.” Id. (quoting Hudson

v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 2164, 165 L. Ed. 2d 56 (2006)).

“The primary focus of our analysis is ‘whether, granting establishment of the

primary illegality, the evidence to which instant objection is made has been come at

by exploitation of that illegality or instead by means sufficiently distinguishable to

be purged of the primary taint.’” Heney, 2013 S.D. 77, ¶ 12, 839 N.W.2d at 562-63

(quoting Boll, 2002 S.D. 114, ¶ 32, 651 N.W.2d at 719).




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[¶23.]       In its findings of fact on McCahren’s motion to suppress T.D.’s

statements, the circuit court found: T.D. and McCahren were placed together based

on the availability of cells, and the roommate assignment was random; law

enforcement had no involvement in placing T.D. in the same cell as McCahren; law

enforcement had no contact with T.D. regarding this case prior to T.D.’s placement

in the same cell with McCahren; there was no contact between law enforcement and

T.D. until one month after T.D. had roomed with McCahren, and that contact

occurred when T.D. initiated the disclosure of his conversations with McCahren;

law enforcement did not direct or control T.D.; and T.D. did not ask for any benefit

or reward for talking to law enforcement.

[¶24.]       McCahren fails to address how his statements to T.D. satisfy the

causal nexus requirement. Although he validly asserts that unconstitutional

conduct should be deterred, the results of the constitutional violation (exceeding the

scope of the exam), have already been suppressed. The order transferring

McCahren to Pennington County was valid; as was the purpose of the psychological

evaluation. It was only the scope of the evaluation that we deemed

unconstitutional. Therefore, McCahren was properly placed in the juvenile center

and randomly assigned a roommate. There is no indication that ‘but for’ the illegal

scope of Dr. Scovel’s examination McCahren would not have discussed the details of

his crime with his roommate.

[¶25.]       Failing suppression, McCahren asserts that he was denied his

constitutional right to cross-examine T.D. because the circuit court refused to allow

cross-examination on T.D.’s mental health. The Sixth Amendment to the United


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States Constitution and Article VI, § 7 of the South Dakota Constitution guarantees

an accused the right to confront witnesses. However, “[t]he Confrontation Clause

guarantees only an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense

might wish.” State v. McKinney, 2005 S.D. 73, ¶ 21, 699 N.W.2d 471, 479 (quoting

Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631, 643

(1987)). “[T]he [circuit] court retains broad discretion concerning the limitation of

cross-examination[,] and it will be reversed only when there is a clear showing of

abuse of discretion and a showing of prejudice to the defendant.” State v. Walton,

1999 S.D. 80, ¶ 25, 600 N.W.2d 524, 530 (quoting State v. Steichen, 1998 S.D. 126, ¶

37, 588 N.W.2d 870, 878).

[¶26.]       McCahren contends that “inherent in T.D.’s predispositions and

symptoms recognized in his mental illness diagnosis” is his “inability to properly

perceive and process events, relay his observations accurately in court, and his

motivation to exaggerate, fabricate or lie without concern for the truth or the

consequences of his actions for himself or others[.]” McCahren fails to point us to

which diagnosis is relevant other than stating that T.D. had “active psychoses at

the time he was incarcerated with [McCahren]” and that it was “a central fact prime

for discussion and inquiry on cross-examination.”

[¶27.]       McCahren points us to federal decisions that have held, “evidence on

mental capacity may be especially probative of the ability to ‘comprehend, know and

correctly relate the truth[.]’” United States v. Lindstrom, 698 F.2d 1154, 1165-66

(11th Cir. 1983) (quoting United States v. Partin, 493 F.2d 750, 763-64 (5th Cir.


                                         -17-
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1974)); United States v. Love, 329 F.3d 981, 985 (8th Cir. 2003). However,

McCahren’s authority is distinguishable. The cases cited involved witnesses with

significant and relevant diagnoses that are not at issue here. In Lindstrom, a key

witness was diagnosed with schizophrenia, was delusional, and had a history of

hallucinations. 698 F.2d at 1161-62. The court explained that “[c]ertain forms of

mental disorder have high probative value on the issue of credibility.” Id. at 1160.

“A psychotic’s veracity may be impaired by lack of capacity to observe, correlate or

recollect actual events. . . . A schizophrenic may have difficulty distinguishing fact

from fantasy and may have his memory distorted by delusions, hallucinations and

paranoid thinking.” Id. In Love, the court explained, “the nature of the

psychological problem in question [was] memory loss—a condition that implicates

[the witness’s] ability ‘to comprehend, know and correctly relate the truth.’” 329

F.3d at 985 (quoting United States v. Jimenez, 256 F.3d 330, 343 (5th Cir. 2001)).

Nothing established that these types of problems existed with T.D. See also, Love,

329 F.3d at 984 (quoting United States v. Jimenez, 256 F.3d 330, 343 (5th Cir.

2001)) (“[T]o be relevant, the mental health records must evince an impairment of

the witness’s ability to comprehend, know, and correctly relate the truth.”).

[¶28.]       In this case, the circuit court allowed the defense to attack T.D’s

credibility through inconsistent, prior testimony and witness testimony. T.D’s own

father testified that T.D. “lies quite a bit, at least 80 to 90% of the time.” After

being questioned by defense counsel, T.D. admitted to various crimes of dishonesty,

which included stealing people’s identities, using credit cards belonging to other

people, and stealing property. T.D. admitted that he had a lying problem in the


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past but testified that he no longer suffered such a problem. He also admitted that

he tends to brag and seek attention. The defense impeached T.D. on prior

inconsistent statements, and T.D. testified that he lied to Detective Kavanagh about

assaulting McCahren immediately upon meeting McCahren at the juvenile facility.

T.D. freely admitted that, at the time he reported the conversations he had with

McCahren to Agent Kavanagh, he was “still laboring under [the] lying problem.” As

a result, McCahren “has not established that [the] limitation prejudiced him or

that, if the jury [had] been presented with this evidence, it would have had a

significantly different impression.” See Walton, 1999 S.D. 80, ¶ 27, 600 N.W.2d at

530-31. The jury heard testimony, including from T.D. himself, that T.D. had a

problem telling the truth. It had the opportunity to judge T.D.’s credibility, and the

circuit court did not abuse its discretion by denying McCahren inquiry into T.D.’s

mental health diagnoses. Thus, McCahren was not denied his right to confront

witnesses.

Suppression of statements made to Officer Waller

[¶29.]       Next, we address McCahren’s contention that statements he made to

Officer Waller should have been suppressed. Officer Waller was with Deputy Kyle

Cummings en route to a program sponsored by the police department when they

responded to the 911 call of a discharged shotgun injuring an individual. He

testified that it took about two minutes to get to the reported address. Waller was

among the first officers at the scene; Sergeant Walz and Officer Martin arrived

separately before Waller and Cummings. He observed officers running across the

lawn and two juveniles, later identified as Youngberg and McCahren, standing in


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the driveway. Waller was directed by Sergeant Walz to speak with the two

juveniles. Waller asked the juveniles who the shooter was, and McCahren raised

his hand in response. Waller asked McCahren to have a seat in Martin’s car.

Youngberg sat in Cummings’ patrol vehicle with Cummings. Waller proceeded to

ask McCahren what had happened. McCahren contends that he was in custody

once Waller proceeded to ask questions after McCahren identified himself as the

shooter. Therefore, McCahren maintains that Waller did not comply with the

parental notification statute SDCL 26-7A-15 6 and his statements made in response

to Waller’s questions should be suppressed as they are in violation of his Fifth

Amendment rights. 7

[¶30.]         Individuals subject to a custodial interrogation are entitled to Miranda

warnings. See State v. Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d 512, 520; Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We utilize a two-part

test when making a custody determination:

               First, what were the circumstances surrounding the
               interrogation; and second, given those circumstances, would a

6.       SDCL 26-7A-15 provides in part:
               The officer or party who takes a child into temporary custody,
               with or without a court order, except under a court order issued
               during a noticed hearing after an action has been commenced,
               shall immediately, without unnecessary delay in keeping with
               the circumstances, inform the child’s parents, guardian, or
               custodian of the temporary custody and of the right to a prompt
               hearing by the court to determine whether temporary custody
               should be continued.

7.       “This Court reviews the denial of a motion to suppress alleging a violation of
         a constitutionally protected right as a question of law by applying the de novo
         standard.” State v. Bowker, 2008 S.D. 61, ¶ 17, 754 N.W.2d 56, 62. “However
         we apply the clearly erroneous standard to the factual findings below.” Id.

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               reasonable person have felt he or she was not at liberty to
               terminate the interrogation and leave. Once the scene is set and
               the players’ lines and actions are reconstructed, the court must
               apply an objective test to resolve the ultimate inquiry: was there
               a formal arrest or restraint on freedom of movement of the
               degree associated with a formal arrest.

Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d at 520 (quoting State v. Johnson, 2007 S.D.

86, ¶ 22, 739 N.W.2d 1, 9). According to McCahren, any potential threats to the

community were extinguished when officers observed the two juveniles on the lawn

and McCahren immediately identified himself as the shooter. Therefore, McCahren

believes his rights were violated as soon as Officer Waller asked any other

questions. This is not the standard by which we determine whether McCahren was

in custody and entitled to Miranda warnings.

[¶31.]         When determining whether McCahren was in custody, the lower court

found that McCahren was not searched or handcuffed, and he was allowed to keep

his phone and make calls. It further found that Waller did not attempt to elicit a

confession; his questions were ones to gain an understanding and determine

whether a crime had been committed. The court concluded that McCahren was not

in custody. Therefore, his Fifth Amendment rights were not violated nor did the

parental notification statute apply. 8 Our review of the record supports the circuit



8.       Even if SDCL 26-7A-15 was applicable, Defendant has not cited authority
         that suppression of the statements at issue is the appropriate remedy for
         failing to follow a statute as contrasted with the constitutional rights
         enumerated in Miranda, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
         Although failure to notify a parent could be relevant to a determination of
         whether a statement was voluntary, the involuntariness of any statement
         has not been shown under the totality of the circumstances. See State v.
         Horse, 2002 S.D. 47, ¶ 26, 644 N.W.2d 211, 224.


                                           -21-
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court’s findings and conclusions. At one point during the conversation, Officer

Waller told McCahren that the door of the police car was unlocked. At no point did

Waller tell McCahren that he was not free to leave the patrol car, and he did not

restrain McCahren’s ability to leave. See State v. Deal, 2015 S.D. 51, ¶ 18, 866

N.W.2d 141, 147. As the circuit court found, Waller’s questioning was neither

lengthy nor aimed at McCahren as a suspect. The objective circumstances

surrounding Waller’s questioning of McCahren were not such that a reasonable

person would have felt he or she was not at liberty to terminate the interrogation

and leave. Id. McCahren was “not so deprived of his freedom as to be ‘in custody’

for Miranda purposes.” See id. (quoting Thompson, 1997 S.D. 15, ¶ 26, 560 N.W.2d

at 541). 9

[¶32.]         Further, Officer Waller’s questions were “general, on-the-scene”

questions. “A law enforcement officer is not required to deliver a Miranda warning

when his questions constitute ‘general on-the-scene questioning as to facts

surrounding a crime or other general questioning of citizens in the fact-finding

process.’” Bowker, 2008 S.D. 61, ¶ 31, 754 N.W.2d at 66 (quoting State v. Bartunek,

323 N.W.2d 121, 124 (S.D. 1982)). As we have explained, “[g]eneral on-the-scene

questioning and fact gathering is absolutely essential for law enforcement officers to



9.       McCahren was later arrested, and transported to the police station. No one
         read him his Miranda rights, but he was asked several questions during the
         ride to the police station. The court suppressed the statements McCahren
         made during that transport. At the station McCahren was placed in a
         sequestered room for two and a half hours while waiting for his father to
         arrive. An officer continued to make conversation with McCahren without
         reading him any Miranda rights. The court also suppressed the statements
         McCahren made during that time.

                                          -22-
#27325

perform their jobs well and to investigate possible crimes.” State v. Herting, 2000

S.D. 12, ¶ 10, 604 N.W.2d 863, 865.

             When circumstances demand immediate investigation by the
             police, the most useful, the most available tool for such
             investigation is general on-the-scene questioning, designed to
             bring out the person’s explanation or lack of explanation of the
             circumstances which aroused the suspicion of the police, and
             enable the police to quickly determine whether they should
             allow the suspect to go about his business or hold him to answer
             charges.

Id. (quoting People v. Haugland, 171 Cal. Rptr. 237, 241 (Cal. Ct. App. 1981)).

Upon arrival, Officer Waller did not know what had happened beyond the fact that

at least one person had been shot. The circumstances of this case demonstrate the

type of situation that requires “immediate investigation” to determine whether

anyone else may be in danger and how law enforcement should proceed. A quick,

general question of “what happened?” allowed Officer Waller to determine whether

he “should allow [McCahren] to go about his business or hold him to answer

charges.” See id. During Waller’s conversation with McCahren, Waller explicitly

told McCahren that he was not going to jail at that time. See id. Thus, Officer

Waller was properly attempting to determine whether a crime had occurred.

Consequently, we affirm the circuit court’s refusal to suppress McCahren’s on-the-

scene statements to Officer Waller. Because McCahren was not in custody, his

Fifth Amendment rights were not violated and the parental notification statute,

SDCL 26-7A-15, did not apply.




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Sentence for aggravated assault

[¶33.]       Lastly, McCahren asks us to remand this case for resentencing on the

aggravated-assault conviction. Aggravated assault is a Class 3 felony punishable by

a maximum of fifteen years imprisonment and a thirty-thousand dollar fine. SDCL

22-18-1.1; SDCL 22-6-1. The court sentenced McCahren to the maximum fifteen-

year sentence for assaulting Youngberg. McCahren asserts that his sentence is

cruel and unusual, which is prohibited by the Eighth Amendment to the United

States Constitution, applicable to the states through the Fourteenth Amendment.

[¶34.]       “When a defendant challenges a sentence as cruel and unusual under

the Eighth Amendment, this Court reviews it for gross disproportionality.” State v.

Craig, 2014 S.D. 43, ¶ 33, 850 N.W.2d 828, 837. “[T]he Eighth Amendment does not

require strict proportionality between the crime and sentence. Rather, it forbids

only extreme sentences that are grossly disproportionate to the crime.” State v.

Chipps, 2016 S.D. 8, ¶ 33, 874 N.W.2d 475, 487 (quoting Harmelin v. Michigan, 501

U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d. 836 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment)). Our threshold inquiry is

whether the sentence appears grossly disproportionate. Id. ¶ 35. To answer the

threshold question, we consider “the gravity of the offense and the harshness of the

penalty.” Id. ¶ 38, 874 N.W.2d at 488 (quoting Solem v. Helm, 463 U.S. 277, 290-91,

103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)). If the comparison fails to suggest

gross disproportionality, our review ends. Id. at 489.

[¶35.]       First we consider the gravity of McCahren’s offense—“the offense’s

relative position on the spectrum of all criminality[.]” State v. Rice, 2016 S.D. 18, ¶


                                          -24-
#27325

13, ___ N.W.2d ___. In this case the gravity of McCahren’s offense is relatively

great on the spectrum of all criminality. He took a shotgun, pointed it in the

direction of Youngberg and repeatedly pulled the trigger. According to Youngberg,

McCahren loaded the shotgun when it failed to discharge and pulled the trigger

again. In McCahren’s own words, this was in an attempt to “scare the shit out of”

Youngberg. McCahren endangered Youngberg’s life and may have killed Youngberg

had Williams not been in front of Youngberg. See State v. Garreau, 2015 S.D. 36, ¶

11, 864 N.W.2d 771, 776 (finding relevant for the gravity inquiry that, but for the

officer’s vest, defendant inflicted a potentially-life-threatening injury on a law

enforcement officer).

[¶36.]       Next, we consider the harshness of McCahren’s penalty—“the penalty’s

relative position on the spectrum of all permitted punishments.” Rice, 2016 S.D. 18,

¶ 13, ___ N.W.2d at___ (quoting Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488). The

Legislature has authorized more severe punishments of death (Class A felonies) and

mandatory life imprisonment (Class A and Class B felonies). In addition,

McCahren will be eligible for parole. See Chipps, 2016 S.D. 8, ¶37, 874 N.W.2d at

488 (“The possibility of parole is also considered in judging the harshness of the

penalty.”). His initial parole eligibility date is in March of 2021.

[¶37.]       McCahren contends that receiving the maximum sentence allowed for

aggravated assault is indicative of gross disproportionality. However, the fact that

a defendant receives the “maximum [sentence] permitted by statute for [a]

particular offense [is] not relevant to an Eighth Amendment analysis.” Rice, 2016

S.D. 18, ¶ 19, ___ N.W.2d ___. Instead, such a fact is relevant in assessing whether


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#27325

the sentencing court abused its discretion. Id. ¶¶ 19, 23, ___ N.W.2d at___.

McCahren also asserts that “the absence of aggravating circumstances and the

existence of mitigating qualities of youth illustrate the sentence’s gross

disproportionality.” But “mitigating factors generally are not considered in

noncapital cases.” Id. ¶ 18 n.3, ___N.W.2d at ____. Although, “mitigating qualities

of youth” must be considered before a court may impose a life sentence without

parole on a juvenile, see State v. Springer, 2014 S.D. 80, ¶ 13, 856 N.W.2d 460, 465-

66 (citing Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 2467, 183 L. Ed. 2d 407

(2012)), a life sentence is not an authorized punishment for the offense of

aggravated assault, and the court did not impose such a sentence. Springer and

Miller do not require the court to consider the mitigating qualities of youth for

Eighth Amendment challenges. Youth may be considered in crafting a sentence,

but such a consideration is a “discretional dimension[] of sentencing.” Rice,

2016 S.D. 18, ¶ 29, ___ N.W.2d at ___. McCahren’s sentence fails to suggest gross

disproportionality, and thus our review ends. See State v. Coleman, 2015 S.D. 48, ¶

11, 865 N.W.2d 848, 851. Finally, McCahren’s arguments regarding his sentence do

not demonstrate that the court abused its discretion. See Rice, 2016 S.D. 18, ¶ 23,

___ N.W.2d at ___. We affirm McCahren’s sentence.

                                     Conclusion

[¶38.]       McCahren had sufficient notice that a lesser-included offense

instruction on second-degree murder could be given when he was indicted on first-

degree murder. The circuit court appropriately limited the defense’s cross-

examination of one of the State’s witnesses. McCahren’s constitutional and


                                         -26-
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statutory rights were not violated when the court refused to suppress the

statements McCahren made to T.D. or Officer Waller. Finally, McCahren’s

sentence for aggravated assault is neither cruel and unusual punishment nor an

abuse of discretion. We affirm.

[¶39.]          GILBERTSON, Chief Justice, and HOUWMAN, Circuit Court Judge,

concurs.

[¶40.]          MYREN and SABERS, Circuit Court Judges, concur specially.

[¶41.]          MYREN, Circuit Court Judge, sitting for ZINTER, Justice,

disqualified.

[¶42.]          HOUWMAN, Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.

[¶43.]          SABERS, Circuit Court Judge, sitting for KERN, Justice,

disqualified.



SABERS, Circuit Court Judge (concurring specially).

[¶44.]          What happened here was wrong in a great many ways. I write

separately to discourage litigators from following this path in the future.

Nevertheless, I respectfully but reluctantly concur.

[¶45.]          In oral argument to this Court, defense counsel argued that this is a

case about notice. And, indeed, it is. As outlined in the majority opinion, a state

statute expressly informs its readers that second-degree murder is a lesser included

offense of first-degree murder. SDCL 22-16-20.1. That statute went into effect in

2005. 2005 S.D. Sess. Laws ch. 120, § 436. Our caselaw also makes clear that,


                                           -27-
#27325

although a less-than-perfect fit, second-degree murder satisfies the elements test

previously adopted by this Court. See, e.g., State v. Giroux, 2004 S.D. 24, ¶ 7, 676

N.W.2d 139, 142; State v. Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d 249, 264. But

the prosecution tried this case, both in and out of the courtroom, as a first-degree

murder case. It was never a second-degree murder case. 10 Before trial began, the

prosecution even filed a motion to preclude the defense from asking for an

instruction on second-degree manslaughter arguing, in part, that there was no basis

for such an instruction because the evidence of premeditation was so strong. As a

result, no one can fault the defense for being surprised at the prosecution’s

eleventh-hour request for an instruction on second-degree murder.

[¶46.]         The trial court here was put in a remarkably difficult position by the

procedural posture in which the issue arose. As the majority points out, the

prosecution first requested the lesser included offense instruction following the close

of evidence, just minutes before closing arguments were to be given. This was the

very first time the defense or the trial court had heard of this reversal in the

prosecution’s theory of the case. Had the defense requested a continuance to

respond to the newly added charge, the trial court would almost certainly have

granted that request. After multiple days of trial, the jury would have been sent

away for an indeterminate amount of time, while the court hoped for unfailing

adherence to the jurors’ oaths of confidentiality—all of this in a highly publicized

case. Alternatively, the trial court could have denied the requested instruction, and


10.      As to the homicide, the prosecution sought and secured an indictment for
         first-degree murder only. The indictment did not include any charges of
         second-degree murder or manslaughter.

                                          -28-
#27325

risked reversal from this Court. 11 Neither of these options are fair expectations of

the trial court.

[¶47.]         Meanwhile, the defense had no obligation to present any evidence. At

the close of the prosecution’s case, the defense likely reached the same conclusion as

did the prosecution—that the record evidence of premeditated murder had fallen

short of a conviction. So, the defense responded accordingly. The defense put on no

psychiatric testimony—evidence that was arguably relevant to the depraved-mind-

theory of the uncharged second-degree murder count. 12 The defendant did not take

the stand—perhaps signaling a strategic decision that it was unnecessary, given the

weak evidence of premeditation. And then, just minutes before closing arguments,

the defense was met with an entirely new and, on these facts, unexpected theory of

the case when the prosecution threw a new charge at the wall hoping it would stick.

[¶48.]         Despite these concerns, I concur. The majority’s opinion is well-

reasoned and thoroughly and accurately sets forth the settled law of this State.

According to that law, what occurred here was constitutionally permissible. It was

also unnecessary. Just because we can do something, does not mean that we

should. We have many rules in place throughout our system of justice to prevent




11.      When a defendant files a direct appeal, the prosecution may file a notice of
         review challenging the refusal to give a requested instruction. See SDCL
         23A-32-14; see generally State v. Vandergrift, 1997 S.D. 5, ¶ 8, 558 N.W.2d
         862, 864 (declining to consider an issue where the prosecution failed to file a
         notice of review under SDCL 15-26A-22).

12.      Such testimony was available given the expert testimony previously offered
         at the juvenile transfer hearing. That testimony included an opinion that the
         defendant’s executive functioning capability was that of an 11- or 12-year-old.

                                           -29-
#27325

trial by ambush. I suggest we steer clear of a practice that allows for charging by

ambush.

[¶49.]       MYREN, Circuit Court Judge, joins this special concurrence.




                                         -30-
