#27122-a-DG

2015 S.D. 36

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

JASON GARREAU,                            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

ELLIE J. BAILEY
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


PATRICIA A. CARLSON
Pierre, South Dakota                      Attorney for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON MARCH 23, 2015
                                          OPINION FILED 05/27/15
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GILBERTSON, Chief Justice

[¶1.]        Jason Todd Garreau appeals the circuit court’s imposition of a 25-year

sentence for his conviction on one count of attempted first-degree murder. Garreau

asserts his sentence violates the Eighth Amendment’s prohibition against cruel and

unusual punishment. He also asserts the circuit court violated his due process

rights in considering a federal presentence investigation report that was included in

the state presentence investigation report. Finally, Garreau asserts he was denied

his right to counsel and right against self-incrimination during the court services

interview in violation of the Fifth and Sixth Amendments. We affirm.

                          Facts and Procedural History

[¶2.]        On October 30, 2013, Garreau borrowed a vehicle from his friend,

Jason Mahto, to travel from Pierre to Fort Thompson. Mahto had active warrants.

Although Garreau asserts his physical appearance is substantially different from

that of Mahto, law enforcement apparently believed Garreau to be the owner of the

vehicle and attempted to initiate a traffic stop before Garreau left Pierre. Rather

than comply, Garreau led law enforcement on a high-speed chase through the City

of Pierre, ignoring traffic signs, disregarding other motorists, and even driving on a

sidewalk in order to evade a law enforcement roadblock. Garreau continued

eastbound out of Pierre on highway 34, travelling at speeds in excess of 95 miles per

hour.

[¶3.]        While fleeing from law enforcement, Garreau called his cousin, John.

John intercepted Garreau on the highway, produced a firearm, and opened fire on

the U.S. marshals in pursuit. At some point during the chase, John turned down a


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gravel road, while Garreau continued along the highway. The marshals abandoned

their pursuit of Garreau and instead pursued John. The chase culminated in an

exchange of gunfire in which law enforcement officers shot and wounded John.

Garreau drove another few miles, abandoned his vehicle, and continued on foot into

Fort Thompson. Garreau was on the phone with John when he was shot. Garreau

later learned that John died as a result of his wounds.

[¶4.]          Garreau returned to Pierre by the following day. Upon his return,

Garreau armed himself with two firearms and went into hiding in a friend’s mobile

home. Law enforcement learned of his location and surrounded the home at

approximately 3:45 p.m. on October 31, 2013. Garreau barricaded himself in the

bathroom and sat in the bathtub. Law enforcement officers were unable to convince

Garreau to surrender. Garreau persisted in his refusal to surrender, and law

enforcement employed gas canisters, flash bombs, and a robot. At approximately

7:45 p.m., the SWAT team entered the home. Garreau, still positioned in the

bathtub with the bathroom door closed, opened fire with his weapons through the

door and walls as he heard law enforcement approach. Garreau shot Officer Cole

Martin in the chest. Fortunately, Officer Martin’s body armor spared him from

serious injury. Officer Martin Waller also sustained injuries as an indirect result of

Garreau’s gunfire. 1 The standoff lasted another four hours before Garreau finally

surrendered.




1.      The exact nature of Officer Waller’s injury is unclear. The presentence
        investigation report indicates he was struck by shrapnel in the leg. Garreau
        asserts the officer was injured by jumping out a window to evade his gunfire.

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[¶5.]        Garreau was indicted on two counts of attempted first-degree murder

in violation of SDCL 22-4-1, SDCL 22-16-4(1), and SDCL 22-16-12. Garreau

entered into a plea agreement with the State. Under the terms of that agreement,

Garreau pleaded guilty to the attempted murder of Officer Martin, and the State

dismissed the second count for the attempted murder of Officer Waller.

Additionally, the State agreed to limit its sentencing recommendation to 20 years.

The circuit court sentenced Garreau to the maximum term of 25 years.

[¶6.]        Prior to sentencing, Garreau filed objections to the presentence

investigation report. In particular, Garreau objected to the inclusion of the federal

presentence investigation report in the state presentence investigation report.

Garreau also objected to being denied counsel at his presentence interview with

court services. The circuit court denied the motions, and Garreau appeals. He

raises three issues:

             1.        Whether his sentence violates the Eighth Amendment’s
                       prohibition against cruel and unusual punishment.

             2.        Whether the inclusion of the federal presentence
                       investigation report in the state presentence investigation
                       report violated due process.

             3.        Whether he was improperly denied counsel during his
                       interview with court services.

                                  Standard of Review

[¶7.]        We generally review a circuit court’s decision regarding sentencing for

abuse of discretion. See State v. Buchhold, 2007 S.D. 15, ¶ 17, 727 N.W.2d 816, 821.

However, in reviewing a challenge to a sentence under the Eighth Amendment, we

have consistently applied Justice Kennedy’s analysis from his concurrence in

Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)
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(plurality opinion). See State v. Bonner, 1998 S.D. 30, ¶ 16, 577 N.W.2d 575, 580.

Therefore, “when a defendant challenges a sentence on Eighth Amendment

grounds, our review is conducted using the gross disproportionality standard”

instead of the abuse of discretion standard. See Buchhold, 2007 S.D. 15, ¶ 17, 727

N.W.2d at 821.

                              Analysis and Decision

[¶8.]        1.     Whether Garreau’s sentence violates the Eighth
                    Amendment’s prohibition against cruel and unusual
                    punishment.

[¶9.]        Garreau asserts that a sentence of 25 years is grossly disproportionate

to the circumstances of the crime to which he pleaded guilty. “The Eighth

Amendment does not require strict proportionality between crime and sentence.

Rather, it forbids only extreme sentences that are grossly disproportionate to the

crime.” Bonner, 1998 S.D. 30, ¶ 15, 577 N.W.2d at 579 (emphasis added) (quoting

Harmelin, 501 U.S. at 1001, 111 S. Ct. at 2705 (Kennedy, J., concurring)) (internal

quotation marks omitted). “[T]o assess a challenge to proportionality we first

determine whether the sentence appears grossly disproportionate.” Id. ¶ 17, 577

N.W.2d at 580 (emphasis added). To answer this threshold question, we consider

“the gravity of the offense and the harshness of the penalty.” Solem v. Helm, 463

U.S. 277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983), quoted in State v.

Guthmiller, 2003 S.D. 83, ¶ 43, 667 N.W.2d 295, 309. This comparison rarely “leads

to an inference of gross disproportionality[,]” Bonner, 1998 S.D. 30, ¶ 27, 577

N.W.2d at 582 (quoting Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707 (Kennedy, J.,

concurring)) (internal quotation mark omitted), and typically marks the end of our

review, id. ¶ 17, 577 N.W.2d at 580. “[I]ntrajurisdictional and interjurisdictional
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analyses are appropriate only in the rare case in which a threshold comparison of

the crime committed and the sentence imposed leads to an inference of gross

disproportionality.” Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707 (Kennedy, J.,

concurring); see also Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580.

[¶10.]       Garreau’s sentence of 25 years imprisonment is the maximum

sentence permitted by statute for this offense but substantially less than the

maximum punishment assigned to the most egregious crimes in this state. Garreau

pleaded guilty to attempted first-degree murder. Attempted first-degree murder

occurs when one human being attempts the unlawful, premeditated killing of

another and “does any act toward the commission of the crime, but fails or is

prevented or intercepted in the perpetration of that crime[.]” SDCL 22-4-1, -16-1, -

16-4(1). While first-degree murder is a Class A felony, which carries a sentence of

death or mandatory life imprisonment, an attempted first-degree murder is a Class

2 felony, which carries a maximum sentence of only 25 years imprisonment. SDCL

22-4-1, -6-1, -16-12. Other sentences authorized by the Legislature include

nonmandatory life imprisonment, SDCL 22-6-1(3) (Class C felonies), and 50 years

imprisonment, SDCL 22-6-1(4) (Class 1 felonies). Thus, Garreau’s sentence is far

from “the most severe punishment that the State could have imposed on any

criminal for any crime.” See Solem, 463 U.S. at 297, 103 S. Ct. at 3013.

[¶11.]       Consistent with Garreau’s sentence, the gravity of his offense is

relatively great. The crime to which Garreau pleaded guilty was the attempt to

commit first-degree murder. Therefore, our analysis must focus on the seriousness

of the attempt. However, because the punishment assigned to an attempt relies on


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the nature of the target offense, see SDCL 22-4-1, it stands to reason that the

seriousness of an attempted criminal act also relies, in part, on the gravity of the

target offense. It is axiomatic that the unlawful, premeditated killing of one person

by another—an act Garreau nearly completed—is one of the most egregious acts

contemplated by our criminal justice system. Here, Garreau took shelter in a

mobile home and refused to cooperate with law enforcement for four hours before

law enforcement entered the home. He waited, armed with a handgun and a

shotgun, until he heard Officers Martin and Waller. After he was aware of their

presence, Garreau indiscriminately opened fire with both weapons in the officers’

direction. A bullet from Garreau’s weapon actually struck Officer Martin in the

chest. Thus, not only did Garreau commit “any act toward the commission of the

crime,” SDCL 22-4-1, he potentially committed all acts necessary for the crime—but

for Officer Martin’s body armor, Garreau’s bullet would have inflicted a potentially-

life-threatening injury on Officer Martin.

[¶12.]       In conducting the threshold comparison between the crime and the

sentence, we also consider other conduct relevant to the crime. Bonner, 1998 S.D.

30 ¶ 17, 577 N.W.2d at 580. Although Garreau ultimately pleaded guilty to the

attempted first-degree murder of Officer Martin, Garreau’s actions on October 30

and 31, 2013, placed a number of lives at risk. He led law enforcement on a

dangerous chase through the City of Pierre, ignoring traffic laws, disregarding the

safety of other motorists, and even driving on a sidewalk to evade the police. He

fled the city and enlisted the assistance of his cousin, even though Garreau later

admitted that he suspected his cousin was under the influence of


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methamphetamines at the time. Garreau hid in a friend’s home and refused to

cooperate with law enforcement for eight hours.

[¶13.]       We conclude Garreau’s 25-year sentence is not grossly disproportionate

to his crime. This was a violent offense that occurred at the culmination of two

days’ worth of bad decisions on Garreau’s part. This was not an attempt that was

intercepted at an early stage, prior to Garreau posing a substantial risk to his

victim; rather, Garreau failed in his attempt probably because of the intervention of

Officer Martin’s body armor. Therefore, we will not conduct inter- and

intrajurisdictional analyses; the objected-to sentence falls within the constitutional

prescriptions of the Eighth Amendment.

[¶14.]       2.     Whether the inclusion of the federal presentence
                    investigation report in the state presentence investigation
                    report violated due process.

[¶15.]       The federal government charged Garreau with 19 counts in relation to

the events that occurred on October 30, 2013. The federal government later

dismissed 17 of these, and Garreau pleaded guilty to the remaining two charges:

assaulting, resisting, and impeding a federal officer; and discharge of a firearm

during a crime of violence. Although these two remaining charges related to

conduct occurring on October 31, the federal report also included a description of

the pursuit and shooting of Garreau’s cousin from October 30. Because the State

only charged Garreau in connection to the standoff of October 31—not the high-

speed pursuit of October 30—and because Garreau was not present at the shooting

of John, Garreau asserts “the inclusion of the federal report and its consideration by

the state court was highly prejudicial to his case and sentencing.” He also argues

that the federal report contained “facts unrelated to the charges [he] faced[.]”
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[¶16.]       Garreau’s argument is meritless. The only authority Garreau offers is

a citation to South Dakota’s rules of evidence. According to Garreau, the circuit

court should have excluded the federal report from consideration under SDCL 19-

12-3 (Rule 403), which governs the exclusion of relevant evidence if prejudicial.

However, we have previously noted that “[d]ue process does not require that the

scope of information reviewed by the sentencing judge be controlled by the rules of

evidence[.]” State v. Grosh, 387 N.W.2d 503, 509 (S.D. 1986) (quoting State v.

Ellefson, 287 N.W.2d 493, 496 (S.D. 1980) (citing Williams v. New York, 337 U.S.

241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949)), superseded by statute, 1978 S.D. Sess.

Laws ch. 178, § 548, as recognized in State v. Brammer, 304 N.W.2d 111, 114 (S.D.

1981)). Instead, “[a] sentencing judge’s access to information should be almost

completely unfettered in order that he may acquire a thorough acquaintance with

the character and history of the man before him.” Id. (quoting United States v.

Schipani, 435 F.2d 26, 27 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1198,

28 L. Ed. 2d 334 (1971)) (internal quotation marks omitted). “He should have full

access to the fullest information possible concerning the defendant’s life and

characteristics. Information which should be available to the court includes general

moral character, mentality, habits, social environment, tendencies, age, aversion or

inclination to commit crime, life, family, occupation, and previous criminal record.”

Id. at 508 (quoting State v. Conger, 268 N.W.2d 800, 801-02 (S.D. 1978)) (citations

omitted).

[¶17.]       Here, the circuit court said, “I think that having access to that

information in the federal presentence report is valuable in terms of helping to flesh


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out and provide information on the individual.” We see no reason to disagree with

the court. Therefore, the circuit court was not required to exclude “inflammatory

facts unrelated to the charges faced by Jason Garreau” in the federal presentence

report from its consideration in determining an appropriate sentence.

[¶18.]       3.     Whether Garreau was improperly denied counsel during
                    his interview with court services.

[¶19.]       Finally, Garreau asserts that his Fifth and Sixth Amendment rights

against self-incrimination and to counsel were violated because, during the

presentence report interview, he was “questioned by a court services officer about

drug-related suspicions and firearm suspicions, which have nothing to do with the

state charge to which the Defendant pled guilty, or any other charge which may

have been dismissed.” We have held “that a defendant’s Fifth Amendment right to

remain silent at sentencing is not waived by entering a guilty plea in South Dakota

state court.” State v. Garber, 2004 S.D. 2, ¶ 22, 674 N.W.2d 320, 326. As the

United States Supreme Court has noted, “[I]ncrimination does not end ‘once guilt

has been adjudicated.’” Id. ¶ 20, 674 N.W.2d at 325 (quoting Mitchell v. United

States, 526 U.S. 314, 325, 119 S. Ct. 1307, 1313, 143 L. Ed. 2d 424 (1999)). The

reason for this is that a defendant’s post-conviction statements may ultimately

influence the sentence issued by the circuit court. Id. However, in his brief to this

Court, Garreau never articulates which statements were compelled beyond a

general reference to “statements about drug use and gun possession[.]”

Furthermore, he asserts that these statements “could have and may still result in

other charges against [him].” (Emphasis added.) Garreau does not, however, assert

that these statements influenced the circuit court in determining his sentence.

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[¶20.]       Additionally, if a defendant “desires the protection of the privilege

[against self-incrimination], he must claim it or he will not be considered to have

been ‘compelled’ within the meaning of the [Fifth] Amendment.” Id. ¶ 23, 674

N.W.2d at 326 (quoting United States v. Monia, 317 U.S. 424, 427, 63 S. Ct. 409,

410-11, 87 L. Ed. 376 (1943)). The circuit court advised Garreau of his right against

self-incrimination at the change of plea hearing. Likewise, Garreau’s attorney

counseled him against answering questions in the presentence investigation

interview. In fact, according to Garreau, he did invoke his right to remain silent

when he “refuse[d] to answer more serious questions about fire arms trafficking and

drug trafficking[.]” Thus, Garreau’s “statements were not made in the absence of

knowledge about his right to remain silent[.]” State v. Kauk, 2005 S.D. 1, ¶ 18, 691

N.W.2d 606, 610 (per curiam). Furthermore, Garreau acknowledges that, at least

as of the date of filing his brief, he was not facing additional charges based on his

statements regarding drug use and gun possession. Thus, based on the limited

information presented by Garreau, we cannot conclude that he was compelled to

incriminate himself.

[¶21.]       Neither are we convinced that Garreau was entitled to the presence of

counsel at the presentence report interview. According to Garreau, a defendant is

entitled to have counsel present “when a court services officer assumes the role of

inquisitor digging for information unrelated to the present charges, conviction, or

the history of the Defendant.” As we have already noted, a sentencing court is

required to acquaint itself with a defendant, Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d

at 580, and should have “almost completely unfettered” information about the


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defendant in order to discharge this duty, Grosh, 387 N.W.2d at 509. Specifically,

but not exclusively, the court should have available information regarding a

defendant’s “aversion or inclination to commit crime[.]” Id. at 508 (quoting Conger,

268 N.W.2d at 802). Information relating to other potential criminal conduct—even

if uncharged—informs the circuit court on the defendant’s inclination to commit

crime, and Garreau has not offered any authority to suggest that such information

should be limited to that relating to a charged offense.

[¶22.]       We decided similarly in State v. Kauk. In that case, the defendant

pleaded guilty to third-degree rape and to furnishing alcohol to a person under the

age of eighteen. Id. ¶ 3, 691 N.W.2d at 607. Because of the defendant’s “age, poor

health, limited education[,] and illiteracy, [defense counsel] had asked to be present

during Court Services’ presentence interview[.]” Id. ¶ 4, 691 N.W.2d at 607. Court

Services conducted the interview without the defendant’s counsel present, the

defendant made statements indicating a lack of remorse, and defense counsel

argued “Court Services’ actions constituted a denial of [the defendant’s] right to

counsel under the state and federal constitutions.” Id. ¶ 4, 691 N.W.2d at 607-08.

We adopted the majority view “that there is no Sixth Amendment right to counsel

at a presentence interview.” Id. ¶ 12, 691 N.W.2d at 609.

[¶23.]       The majority view, as identified in Kauk, “focuse[s] primarily on the

non-adversarial nature of a presentence interview[.]” Id. “[T]he [Sixth

Amendment] right to counsel attaches only at critical stages of the prosecution.” Id.

¶ 12, 691 N.W.2d at 609 (quoting United States v. Leonti, 326 F.3d 1111, 1119-20

(9th Cir. 2003)). Because the court services officer “‘is not an agent of the


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prosecution, . . . has no adversarial role in the sentencing proceedings, . . . and acts

as a neutral information gatherer for the judge,’ the right to counsel does not

attach.” Id. (quoting Leonti, 326 F.3d at 1119). Garreau essentially argues that the

content of the court services officer’s questions alone is sufficient to render the court

services officer an adversary. However, Garreau once again offers no authority for

this proposition. Even if a court services officer asks a question that may be viewed

as contrary to a defendant’s interests, “the [court services officer] does not act on

behalf of the government[.]” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.

1993).

[¶24.]       Regardless, it is not necessary that we carve out an exception to Kauk

today and decide whether a defendant has a Sixth Amendment right to counsel

“when a court services officer assumes the role of inquisitor[.]” A defendant’s Sixth

Amendment right to counsel “attaches to charged offenses and does not attach to

uncharged crimes or factually unrelated charged crimes.” State v. Hoadley, 2002

S.D. 109, ¶ 26, 651 N.W.2d 249, 256-57 (emphasis added) (citing Texas v. Cobb, 532

U.S. 162, 171-72, 121 S. Ct. 1335, 1342-43, 149 L. Ed. 2d 321 (2001)). As noted

above, Garreau asserts merely that his statements made during questioning “could

have and may still result in other charges against [him].” (Emphasis added.)

Garreau cannot logically argue that his responses in the presentence investigation

interview led to the charge to which he pleaded guilty, and his statement

necessarily implies that his objected-to statements have not yet resulted in any

additional charges. Therefore, Garreau did not have a Sixth Amendment right to

have counsel present at the interview.


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                                    Conclusion

[¶25.]       The circuit court sentenced Garreau to the maximum available

punishment, but not one grossly disproportionate to Garreau’s nearly successful

attempt to end Officer Martin’s life. As Garreau said in his appellate brief,

“Undoubtedly, had Jason Garreau surrendered to local law enforcement on October

31, 2013, instead of engaging in a shootout, he would not be serving state time for

these crimes.” The circuit court did not violate due process in viewing the federal

presentence investigation report. Finally, Garreau has not articulated how any

alleged violation of his Fifth or Sixth Amendment rights has impacted the case

before us. Therefore, we affirm.

[¶26.]       ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.




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