#25899-a-SLZ

2012 S.D. 42

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

JOHN GRAHAM A/K/A
JOHN BOY PATTON,                            Defendant and Appellant.


                                   ****

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

                                   ****

                    THE HONORABLE JOHN J. DELANEY
                          Retired Circuit Judge

                                   ****

MARTY J. JACKLEY
Attorney General

MAX A. GORS
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff and
                                            appellee.


JOHN R. MURPHY
Rapid City, South Dakota                    Attorney for defendant and
                                            appellant.


                                   ****
                                            ARGUED ON MARCH 19, 2012

                                            OPINION FILED 05/30/12
#25899

ZINTER, Justice

[¶1.]         John Graham was convicted of felony murder. He appeals, contending

that: he was tried on the felony murder charge in violation of the specialty doctrine

of federal extradition law; the circuit court erred in admitting hearsay; there was

insufficient evidence to support the conviction; and, his life sentence without parole

was unauthorized by statute and was unconstitutional under the Eighth

Amendment. We affirm.

                            Facts and Procedural History

[¶2.]         In February 1976, Anna Mae Aquash’s body was found at the bottom of

a bluff in a remote area of the Badlands near Highway 73 between Kadoka and

Wanblee. An autopsy indicated that she died from a single bullet wound to the

head.

[¶3.]         In 2003, John Graham, a Canadian citizen, was charged in federal

court with the premeditated murder of Aquash. In 2007, Graham was extradited to

the United States from Canada on that charge. After protracted litigation in the

federal courts, the federal premeditated murder charge was dismissed. See United

States v. Graham, 572 F.3d 954 (8th Cir. 2009). However, before Graham could

return to Canada, he was indicted by a Pennington County grand jury on state

charges of premeditated murder and felony murder.1 The underlying felony was

alleged to be the kidnapping of Aquash.




1.      SDCL 22-16-9 (1975) provided: “Homicide is murder when perpetrated
        without any design to effect death by a person engaged in the commission of
        any felony.”

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#25899

[¶4.]        The State’s theory of the case was that Aquash was kidnapped and

murdered because leaders and members of the American Indian Movement (AIM)

believed she was a federal government informant. In the 1970s, Aquash had been

actively involved in AIM. In the summer of 1975, Aquash was arrested with several

AIM leaders on federal charges involving the possession of explosives on the

Rosebud Sioux Indian Reservation. Aquash was charged in federal court and

released from custody. In October 1975, Aquash, along with other AIM members

and leaders, traveled to Washington in a motor home. After spending some time in

Washington, the group traveled to Oregon. While traveling in Oregon in November,

the occupants of the motor home were involved in a shoot-out with the Oregon

Highway Patrol. Aquash was arrested on additional charges and was returned to

South Dakota to face the prior federal charges. Aquash was released again on the

South Dakota federal charges, and she fled to Denver around November 25, 1975.

[¶5.]        The State presented evidence that a few days after Aquash arrived in

Denver, AIM leaders ordered Aquash to be taken to Rapid City to face the

allegation that she was an informant for the government. Witnesses testified that

Aquash’s hands were tied, and she was forcibly taken to Rapid City by AIM

members Graham, Arlo Looking Cloud, and Theda Clarke. There was also evidence

that this group eventually obtained a gun, took Aquash to a bluff in the Badlands,

and Graham shot her.

[¶6.]        Over defense objections, the State introduced out-of-court statements

to prove its theory of the case. The circuit court allowed Looking Cloud and Denise

Maloney (Aquash’s daughter) to testify to the contents of a telephone call Looking


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Cloud made to Maloney in 2002 regarding the shooting. Looking Cloud testified he

“told [Maloney] that John Boy [Graham] shot [Aquash] and there was Theda

[Clarke] and I, and I was sorry.” Maloney confirmed Looking Cloud’s call. Maloney

testified that during the call, Looking Cloud told her “that [Looking Cloud] was told

to stay at the car. And that John Boy [Graham] and Theda and [Aquash] went up

over a hill. [Looking Cloud] heard a gunshot. And John Boy [Graham] and Theda

came back without [Aquash].”

[¶7.]         The State also introduced out-of-court statements through Troy Lynn

Yellow Wood relating to Aquash’s status as an informant and AIM leaders’

motivation to kill her. The statements were made in a 1975 encounter in

Farmington, New Mexico between Aquash and AIM leader Leonard Peltier. Yellow

Wood testified that Aquash told Yellow Wood that during that meeting, Peltier held

a gun to Aquash’s head while Peltier made statements accusing Aquash of being an

informant.2




2.      Yellow Wood testified:

              [Aquash] said that people were—it seems like there was some
              kind of—a little—a meeting of certain people that were accusing
              her of being an informant. And that—and she had to defend
              herself. And she told me that—that Leonard Peltier was there
              and that he said, you know, I want to hear it from the horse’s
              mouth, Anna Mae. I want to know if you are doing what they
              are saying that you are doing. Are you giving us up? Are you
              doing this?

              And she said that she just—she said she was really afraid
              because he had a gun and she said he held the gun to her head
              and she told him if you believe that about me, then pull the
              trigger. But either you defend me or you kill me because I am
                                                            (continued . . .)
                                           -3-
#25899

[¶8.]         The last out-of-court statements at issue were introduced through

Darlene “Kamook” Nichols Ecoffey. The statements related to AIM leaders’

motivation to have Aquash killed. Ecoffey was in the motor home with Peltier and

Aquash when they traveled to Washington in October 1975. Ecoffey indicated that

during that trip, Peltier made a self-incriminatory statement in the presence of

Aquash. Ecoffey testified that Peltier bragged to the occupants of the motor home

that he had shot and killed an FBI agent on the Pine Ridge Indian Reservation

while the agent was begging for his life.3




________________________
(. . . continued)
               tired of everybody doing this to me. I am tired of being the
               target of your—all this nonsense. I am not guilty.

3.      Kamook Ecoffey testified:

              Q:   Who, again, was present for the discussion involving
                   Leonard Peltier?
              A:   It would be myself, Dennis Banks, Kenny Loud Hawk, my
                   sister Bernie Nichols, and Annie Mae [Aquash], and
                   Leonard [Peltier].
              Q:   Did you witness or did you see—did you witness and see
                   Leonard Peltier make what appears to be incriminating
                   statements?
              A:   Yes, I did.
              Q:   Would you please look to the jury and to the best that you
                   can[,] describe what he said and any hand movements he
                   said [sic] when he made it?
              A:   He held his hand like this (indicating). He was standing—
                   there was a little table. We were sitting at the table. He
                   was standing by the table in the motor home. He held his
                   hand like this (indicating) and he said, that mother f*****
                   was begging for his life but I shot him anyway.
              Q:   Kamook, who was he referring to?
              A:   He was talking about the FBI agent.

                                             -4-
#25899

[¶9.]        Graham was found guilty of felony murder, but was acquitted of

premeditated murder. He was sentenced to life in prison without parole. Graham

raises the following issues on appeal:

             1.     Whether the doctrine of specialty, arising under an
                    extradition treaty with Canada, deprived the State of
                    jurisdiction to try Graham on the state felony murder
                    charge when he had been extradited to the United States
                    on the federal charge of premeditated murder.

             2.     Whether the circuit court erred in allowing Looking
                    Cloud’s and Maloney’s testimony restating Looking
                    Cloud’s 2002 telephonic statement to Maloney.

             3.     Whether the circuit court erred in allowing Yellow Wood’s
                    testimony that Aquash said that Peltier made a
                    statement accusing Aquash of being an informant.

             4.     Whether the circuit court erred in allowing Ecoffey’s
                    testimony that Peltier, in the presence of Aquash, made a
                    self-incriminatory statement admitting that he killed an
                    FBI agent.

             5.     Whether there was sufficient evidence to convict Graham
                    of felony murder.

             6.     Whether Graham’s sentence of life imprisonment without
                    parole was authorized by statute, and whether the
                    sentence was cruel and unusual punishment under the
                    Eighth Amendment.

                                         Decision

Specialty

[¶10.]       Because Graham was extradited from Canada on the federal

premeditated murder charge, he argues that under the doctrine of specialty, the

State lacked personal jurisdiction to prosecute him on the State felony murder

charge. See Johnson v. Browne, 205 U.S. 309, 27 S. Ct. 539, 51 L. Ed. 816 (1907)

(discharging a defendant from imprisonment for an offense different than the


                                           -5-
#25899

offense for which Canada had granted extradition); see also Treaty on Extradition

Between the Government of Canada and the Government of the United States

(Treaty), U.S.-Can., art. 12, Dec. 3, 1971, 27 U.S.T. 983 (providing that an

extradited person “shall not be detained, tried or punished in the territory of the

requesting State for an offense other than that for which extradition has been

granted”). Graham argues that because he was not extradited on the felony murder

charge, his conviction should be vacated and he should be allowed to return to

Canada to challenge extradition on that charge.4 The State responds that any



4.    The circuit court concluded that because Graham was physically present
      before the court, the means used to acquire his presence were irrelevant.
      This reasoning is incorrect in cases where physical presence has been
      obtained by means of an extradition proceeding under a treaty. The Eleventh
      Circuit Court of Appeals explained:

             The Supreme Court first recognized the doctrine of specialty in
             United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed.
             425 (1886). . . . The Court held that because Rauscher had been
             brought within the jurisdiction of the court under an extradition
             treaty, he could only be tried for one of the offenses described in
             the treaty and for the offense with which he had been charged in
             the extradition proceeding. Rauscher, 119 U.S. at 430, 7 S. Ct.
             at 246.
             ...
             [However, one must also consider] Ker v. Illinois, 119 U.S. 436, 7
             S. Ct. 225, 30 L. Ed. 421 (1886), a companion case to Rauscher.
             Law enforcement officers kidnapped Ker in Peru and forcibly
             brought him to the United States to face a state court charge of
             larceny. He argued that his kidnapping violated the provisions
             of the United States–Peru extradition treaty. The Court
             rejected Ker’s claim on the grounds that the extradition treaty
             was inapplicable because Ker had been abducted rather than
             extradited. 119 U.S. at 442, 7 S. Ct. at 228-29. The Court
             distinguished Rauscher on the grounds that Rauscher “came to
             this country clothed with a protection which the nature of such
             [extradition] proceedings and a true construction of the treaty
             gave him.” Ker, 119 U.S. at 443, 7 S. Ct. at 229. When read
                                                              (continued . . .)
                                          -6-
#25899

objection based on the doctrine of specialty was waived by Canada.5 Violations of

the doctrine of specialty implicate personal jurisdiction, and “challenges to personal

jurisdiction based on the alleged violation of an extradition treaty between the

United States and another country” are reviewed de novo. United States v.

Anderson, 472 F.3d 662, 666, 668 (9th Cir. 2006).

[¶11.]         “The rule of specialty ‘stands for the proposition that the requesting

state, which secures the surrender of a person, can prosecute that person only for

the offense for which he or she was surrendered by the requested state or else must

allow that person an opportunity to leave the prosecuting state to which he or she

had been surrendered.’” United States v. Valencia-Trujillo, 573 F.3d 1171, 1173-74

(11th Cir. 2009) (quoting United States v. Gallo-Chamorro, 48 F.3d 502, 504 (11th

Cir. 1995)). It is, however, also generally recognized that a defendant is not




________________________
(. . . continued)
               together, Ker and Rauscher establish that when personal
               jurisdiction over a criminal defendant is obtained through
               extradition proceedings, the defendant may invoke the
               provisions of the relevant extradition treaty in order to
               challenge the court’s exercise of personal jurisdiction.

         United States v. Puentes, 50 F.3d 1567, 1572-73 (11th Cir. 1995).

5.       The State also contends that Graham was in state court for felony murder
         based upon the same facts supporting the federal court charges for which he
         was extradited. See United States v. Sensi, 879 F.2d 888, 895-96 (D.C. Cir.
         1989) (“What the doctrine of specialty requires is that the prosecution be
         ‘based on the same facts as those set forth in the request for extradition.’”
         (quoting Restatement (Third) of Foreign Relations Law of the United States §
         477 cmt. a (1987))). In addition, the State asserts that the treaty contains no
         language allowing Graham to return to Canada to contest extradition. In
         light of our decision on waiver, we do not review these contentions.

                                            -7-
#25899

protected by the doctrine of specialty if the extraditing country waives objection to

prosecution for a crime other than one for which the defendant was extradited.

               There is a recognized limitation . . . on a defendant’s right to
               object on the ground that his extradition has violated the
               doctrine of specialty. He may not raise such a claim if the state
               from which he is extradited explicitly waives any objection based
               on the rule of specialty. Such a waiver abrogates that portion of
               the treaty with respect to the defendant.

Antwi v. United States, 349 F. Supp. 2d 663, 671 (S.D.N.Y. 2004); United States v.

Thirion, 813 F.2d 146, 151 (8th Cir. 1987) (recognizing that the doctrine of specialty

is waived if the asylum country consents to extradite the defendant for another

offense).

[¶12.]         In this case, Canada explicitly consented to the prosecution of Graham

on the Pennington County indictment charging felony murder.6 Because Canada



6.       The Consent to Waiver of Specialty, signed by the Canadian Minister of
         Justice on February 2, 2010, provides:

               Consent to Waiver of Specialty Article 12(1)(iii) of the Treaty on
               Extradition between Canada and the United States of America

               United States of America v. John Graham

               Having regard to the request from the United States of America
               dated December 18, 2009, (Diplomatic Note No. 852) and to the
               provisions of sub-paragraph 12(1)(iii) of the Treaty on
               Extradition between Canada and the United States of America, I
               hereby consent to the detention, prosecution and, if he is
               convicted, punishment of John Graham with respect to the
               offences which are set forth in the Indictment, No. 09-3953, filed
               on September 9, 2009, in the Seventh Circuit Court, County of
               Pennington, namely:

               Count 1: Murder while in the Commission of any felony namely
                        kidnapping, in violation of South Dakota Codified Law
                        22-16-9 and 22-19-1; and
                                                            (continued . . .)
                                           -8-
#25899

consented to waive specialty with respect to the state charge at issue, the State had

jurisdiction to prosecute Graham for felony murder.7

[¶13.]         Graham, however, also argues that this case should be remanded to

provide him with an opportunity to challenge the validity of Canada’s written

consent, which he was not allowed to examine before trial. The State argues that

Graham has no standing to assert a violation of the doctrine of specialty under the

Treaty.

[¶14.]         The federal circuits are divided on the “question of whether a criminal

defendant has standing to assert a violation of the doctrine of specialty.” United

States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995).8 But even the courts that


________________________
(. . . continued)

               Count 3: Premeditated Murder, in violation of South Dakota
                        Codified Law 22-16-4.

7.       Graham’s reliance on Browne is misplaced. In Browne, 205 U.S. at 311-17,
         321, 27 S. Ct. at 539-41, 543, the Canadian government consented to
         extradition for one offense. But when the defendant was extradited to New
         York, the government imprisoned the defendant on a prior conviction of an
         offense for which the Canadian government had specifically refused to grant
         extradition. Unlike in Browne, the Canadian government consented to
         Graham’s prosecution for the specific felony murder charge at issue.

8.       Some circuits have concluded that “individuals have no standing to challenge
         violations of international treaties in the absence of a protest by the
         sovereigns involved.” Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th
         Cir. 1990); accord United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005)
         (“[E]xtradition treaties do not create personal rights enforceable by criminal
         defendants.”); United States ex rel. Saroop v. Garcia, 109 F.3d 165, 168 (3d
         Cir. 1997) (“Had [defendant] brought suit invoking the treaty or the Rule of
         Specialty, she would lack standing.”); United States v. Riviere, 924 F.2d 1289,
         1296-1301 (3d Cir. 1991) (holding that defendant lacked standing to assert
         that extradition violated extradition treaty because treaty ran between
         sovereign nations, not individuals, and because expediting nation consented
                                                                (continued . . .)
                                             -9-
#25899

recognize a defendant’s standing to assert a sovereign’s right to specialty, impose

limits on that individual’s standing: “The extradited individual . . . enjoys this right

[to challenge extradition] at the sufferance of the requested nation. As a sovereign,

the requested nation may waive its right to object to a treaty violation and thereby

deny the defendant standing to object to such an action.” Id. at 1575. Further,

when there is no suggestion of an objection by the asylum country, a court may

reject a defendant’s challenge to the validity of a specialty waiver. See United

States v. Najohn, 785 F.2d 1420, 1423 (9th Cir. 1986) (noting that although the

defendant challenged the documents permitting prosecution, in “view of the absence

of any effort by the defendant to obtain a Swiss judgment prohibiting Swiss consent

to further prosecution, we are justified in regarding the statement of the executive


________________________
(. . . continued)
         to extradition); United States v. Kaufman, 874 F.2d 242, 243 (5th Cir. 1989)
         (per curiam) (stating that only the offended nation that is a party to a treaty
         may complain of a breach of the treaty); Demjanjuk v. Petrovsky, 776 F.2d
         571, 583-84 (6th Cir. 1985) (expressing doubt that the individual has
         standing on the grounds that “[t]he right to insist on application of the
         principle of specialty belongs to the requested state, not to the individual
         whose extradition is requested”); United States v. Cordero, 668 F.2d 32, 38
         (1st Cir. 1981) (“[U]nder international law, it is the contracting foreign
         government, not the defendant, that would have the right to complain about
         a violation [of an extradition treaty].”).

      Other circuits have concluded that even when an extraditing country does
      not specifically object to prosecution, “an individual extradited pursuant to
      an extradition treaty has standing under the doctrine of specialty to raise any
      objections which the requested nation might have asserted.” Puentes, 50 F.3d
      at 1575; accord United States v. Andonian, 29 F.3d 1432 (9th Cir. 1994) (“An
      extradited person may raise whatever objections the extraditing country is
      entitled to raise.”); United States v. Levy, 905 F.2d 326, 328 n.1 (10th Cir.
      1990) (stating that a defendant has standing to assert a violation of the
      doctrine of specialty); Thirion, 813 F.2d at 151 n.5 (allowing an extradited
      defendant to bring any objections the extraditing country might have raised).

                                          -10-
#25899

branch as the last word of the Swiss government” regarding consent.). The Ninth

Circuit reasoned: “To do otherwise would ignore the precept that courts do not

intervene in foreign affairs. . . . [T]here is no reason to extend [the doctrine of

specialty] to require courts to initiate an investigation into the workings of foreign

governments.” Id.; see also United States v. Tse, 135 F.3d 200, 205 (1st Cir. 1998)

(rejecting a defendant’s challenge to the validity of the extraditing government’s

letter waiving the rule of specialty, stating: “Despite [the defendant]’s assertions[,]

the note appears to be an official response from the [extraditing] government, and

this court has no power to require [the extraditing government] to follow a

particular procedure in granting a diplomatic request.”).

[¶15.]         Here, under either view of standing, Graham’s request for a remand to

consider a possible challenge to the validity of Canada’s written consent is not

authorized. Graham has not argued that Canada did or would object to Graham’s

prosecution for felony murder. On the contrary, the only record evidence reflects

Canada’s express consent to the prosecution. Further, under either view of

standing, Graham may not challenge Canada’s decision to consent. Finally,

Graham has had access to the written consent in preparing this appeal but does not

argue that it is a misrepresentation or forgery.9 And without some basis for



9.       At a pre-trial hearing, Graham requested discovery of Canada’s consent to
         waiver of specialty. An Assistant United States Attorney was present. It
         was acknowledged by all present that the United States Attorney’s Office had
         represented that Canada had consented to the state prosecution. Graham,
         however, indicated that he had been in contact with the Canadian Consulate
         and was having difficulty obtaining information. Graham argued that if the
         United States Government’s representation were untrue, the
         misrepresentation would constitute prosecutorial misconduct implicating
                                                            (continued . . .)
                                           -11-
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believing that Canada had not consented, even those courts recognizing individual

standing would not grant Graham’s request for a remand simply to explore a

challenge to Canada’s written waiver.



Admissibility of Looking Cloud’s and Maloney’s Testimony Restating Looking
Cloud’s 2002 Telephonic Statement to Maloney

[¶16.]       Graham argues that Looking Cloud’s and Maloney’s testimony

restating Looking Cloud’s 2002 statement in his telephone call to Maloney was

inadmissible hearsay. The State argues that Looking Cloud’s 2002 telephone

statement to Maloney was a prior consistent statement under SDCL 19-16-2 (Rule

801(d)(1)). Graham responds that the State failed to establish the foundation for a

prior consistent statement. We review the circuit court’s evidentiary ruling under

the abuse of discretion standard. State v. Fisher, 2011 S.D. 74, ¶ 32, 805 N.W.2d

571, 578.

[¶17.]       “‘Hearsay’ is 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


________________________
(. . . continued)
         Graham’s right to due process. It was subsequently ordered that the
         Assistant United States Attorney would determine if the consent was a public
         document, and if so, it would be disclosed. In response to that order, the
         State and United States Attorney disclosed that the consent was not a public
         document, but that Canada agreed to an in camera inspection by the circuit
         court and the circuit court could determine “the value or relevance of [the
         consent] to the defense.” The circuit court conducted an in camera review of a
         copy of Canada’s consent and sealed the document, indicating that good cause
         had not been shown for disclosure. On motion by Graham, the formal written
         Consent to Waiver of Specialty was unsealed and disclosed to Graham after
         trial. Graham does not appeal the circuit court’s decision sealing the Consent
         to Waiver of Specialty.

                                          -12-
#25899

asserted.” SDCL 19-16-1(3) (Rule 801(c)). Certain prior consistent statements are

not hearsay.

               A statement is not hearsay if the declarant testifies at the trial
               or hearing and is subject to cross-examination concerning the
               statement, and the statement is:
                     ...
                     (2) Consistent with his testimony and is offered to rebut
                     an express or implied charge against him of recent
                     fabrication or improper influence or motive . . . .

SDCL 19-16-2(2) (Rule 801(d)(1)).

[¶18.]         Looking Cloud was the declarant whose out-of-court statement was

repeated by both Looking Cloud and Maloney at trial. Graham argues that Looking

Cloud’s statement was not a prior “consistent” statement because it was

inconsistent with his trial testimony. Graham also argues that because the

testimony was given before Looking Cloud was impeached, there was no express or

implied charge of recent fabrication. The State responds that the material part of

Looking Cloud’s out-of-court statement—that Graham shot Aquash—was consistent

with his trial testimony. The State also contends that Graham raised the charge of

recent fabrication by making that assertion in his opening statement. We agree

with the State’s contentions.

[¶19.]         Looking Cloud was the principal witness against Graham. In

Graham’s opening statement, Graham’s counsel charged Looking Cloud with recent

fabrication of his story regarding Graham’s involvement in the kidnapping and

murder. Although Graham’s counsel did not specifically reference the details of the

shooting, he claimed that Looking Cloud “change[d] his story in every material way”

as the result of negotiations with the government to obtain a reduced sentence in

2008. Graham argued that “Looking Cloud showed that he would be willing to do
                                     -13-
#25899

anything to help [the government] in any prosecution,” and that Looking Cloud had

“bias and motives to lie . . . and all sorts of other reasons for slanting [his]

testimony.” Graham asked the jury “to consider whether Arlo Looking Cloud . . .

respect[s] the oath or whether [he is] testifying based on other reasons.” Graham

clearly claimed that Looking Cloud had recently fabricated his expected

testimony.10 With respect to consistency, some details of Looking Cloud’s prior

2002 statement to Maloney were inconsistent with his trial testimony. But the

essence of Looking Cloud’s 2002 out-of-court statement—that Graham shot

Aquash—remained consistent with Looking Cloud’s trial testimony. Therefore,

Looking Cloud’s 2002 statement to Maloney was a prior consistent statement that

was properly admitted to rebut Graham’s charge of recent fabrication.11




10.    Graham argues that Looking Cloud’s 2002 statement does not predate his
       motive to lie because Looking Cloud brokered his first “deal” with the
       government in 1994. See State v. Younger, 453 N.W.2d 834, 839 (S.D. 1990)
       (“[T]he proponent must demonstrate that the prior consistent statement was
       made prior to the time the supposed motive to falsify arose.”). However, it is
       clear from Graham’s opening statement that Graham was alleging
       fabrication in 2008. In his opening statement, Graham claimed: “So Arlo
       Looking Cloud, when he starts that [sic] negotiations for the Rule 35
       [sentence reduction, which started in 2008], suddenly changes his story in
       every material way.”

11.    Graham also waived his objection to Maloney’s testimony regarding Looking
       Cloud’s statement. Although Graham objected the first time Maloney was
       asked to testify about Looking Cloud’s statement, the court did not issue a
       definitive ruling that the testimony was a prior consistent statement.
       Therefore, Graham was required to renew the objection when Maloney was
       asked that question again. See SDCL 19-9-3 (Rule 103(a)).

                                           -14-
#25899

Admissibility of Yellow Wood’s Testimony that Aquash Stated that Peltier Held a
Gun to Aquash’s Head While Accusing Her of Being an Informant

[¶20.]       Graham filed a motion in limine to preclude Yellow Wood from

testifying that Aquash told Yellow Wood that Peltier, while holding a gun to

Aquash’s head, accused Aquash of being an informant. The circuit court denied

Graham’s motion. The court concluded that the evidence was not hearsay because:

(1) Peltier’s “threat [was] relevant to one of the proffered motives for Aquash’s

murder—that she was widely suspected to be an informant by members of the

American Indian Movement, including Peltier”; (2) the State’s theory was that

Aquash was murdered on orders of AIM leaders, and Graham was a member of

AIM; and, (3) “the truth of the matter asserted—that Aquash was or was not an

informant—[was] not the purpose of [admitting] the statements’ introduction . . . .”

[¶21.]       On appeal, the State adopts the circuit court’s reasoning, pointing out

that an out-of-court statement is not hearsay unless it is “offered in evidence to

prove the truth of the matter asserted.” See SDCL 19-16-1(3) (Rule 801(c)).

Graham, however, points out that even if Peltier’s accusation was admissible for

some permissible purpose other than proving the truth of the matter asserted,

Yellow Wood was testifying to prove the truth of Aquash’s out-of-court statement

that Peltier made the accusation. Therefore, Graham argues that Yellow Wood’s

repetition of Aquash’s out-of-court statement about Peltier’s out-of-court statement

was inadmissible hearsay within hearsay. We agree with Graham.

[¶22.]       Yellow Wood’s testimony was hearsay within hearsay. Her testimony

included both Peltier’s out-of-court statement to Aquash and Aquash’s out-of-court

statement to Yellow Wood. When hearsay within hearsay is offered, SDCL 19-16-36

                                         -15-
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(Rule 805) requires that each statement either meet a hearsay exception or qualify

as “nonhearsay.” See Johnson v. O’Farrell, 2010 S.D. 68, ¶ 16, 787 N.W.2d 307,

313; see also 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence § 805.04 (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 2011)

(“Hearsay within hearsay is . . . wholly inadmissible when any single out-of-court

statement fails to qualify under an exclusion from or exception to the hearsay

rule.”).

[¶23.]       We acknowledge the State’s point that Peltier’s accusatory statement

regarding Aquash’s status as an informant was not hearsay if offered by a witness

to the statement to prove that there were rumors in the AIM community that

Aquash was a suspected informant. See United States v. Looking Cloud, 419 F.3d

781, 787-88, 789 n.5 (8th Cir. 2005) (allowing informant rumor testimony by AIM

members who had apparently been witnesses to the rumors regarding Aquash).

But Yellow Wood was not a witness to Peltier’s statement, and her recitation of

Aquash’s statement does not meet a hearsay exception or exclusion. On the

contrary, Yellow Wood’s testimony was offered to prove the truth of Aquash’s

statement—that Peltier actually put a gun to Aquash’s head while accusing her of

being an informant. Because Yellow Wood’s testimony was being offered to prove

the truth of Aquash’s statement, Yellow Wood’s testimony was inadmissible

hearsay. See United States v. $92,203.00 in U.S. Currency, 537 F.3d 504 (5th Cir.

2008) (immigration agent’s affidavit stating that police officers’ statements to agent

regarding defendant’s admissions to officers was based on hearsay because the

agent was not present when defendant made admissions to the officers); Haywood v.


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Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003) (plaintiff’s testimony that

former co-worker told her that her superiors had said plaintiff was unstable was

inadmissible hearsay).

[¶24.]       Looking Cloud, 419 F.3d 781, does not support the State’s position that

Aquash’s statement to Yellow Wood was not hearsay. The specific statements

considered in Looking Cloud are not disclosed, but they appear to involve witnesses

who had firsthand knowledge of rumors of Aquash being an informant. In any

event, the Looking Cloud court did not consider whether hearsay within hearsay

could be used to prove that a particular individual made a particular statement

accusing Aquash of being an informant in the presence of other AIM members.

Because Yellow Wood’s testimony was being offered to prove the truth of Aquash’s

statement, Aquash’s credibility was at issue, and Aquash’s statement was not

excluded from the definition of hearsay. See SDCL 19-16-1(3) (Rule 801(c)). The

circuit court erred in admitting Yellow Wood’s testimony repeating what Aquash

said Peltier said to Aquash.

[¶25.]       The error, however, does not end the inquiry. “Even if a trial court’s

evidentiary ruling is erroneous, the error must be prejudicial in nature before we

will overturn the ruling.” Fisher, 2011 S.D. 74, ¶ 32, 805 N.W.2d at 578. “Error is

prejudicial when, in all probability . . . it produced some effect upon the final result

and affected rights of the party assigning it.” Id. (alteration in original). “In

determining whether an error is harmless, the reviewing court must take account of

what the error meant to [the jury], not singled out and standing alone, but in




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relation to all else that happened.” State v. Johnson, 2009 S.D. 67, ¶ 25, 771

N.W.2d 360, 370 (alteration in original).

[¶26.]       In this case, numerous witnesses other than Yellow Wood testified that

Aquash was rumored to be a government informant in the AIM community. For

example, Kamook Ecoffey testified that Aquash was a suspected informant, and

Ecoffey believed that Aquash was brought on the motor home trip with AIM leaders

Leonard Peltier and Dennis Banks because they wanted to “keep an eye on her.”

Other witnesses testified that during one of the discussions regarding Aquash being

an informant, Ernesto Vigil made a “throat-slitting” gesture and said they take

“snitches” out to the country and get rid of them. There was also testimony that

Aquash was tied up and transported from Denver to Rapid City to answer to the

informant allegations—testimony clearly showing the seriousness of the informant

rumors. Because the informant rumors and related threats were pervasive and

essentially undisputed throughout the trial, Yellow Wood’s one similar statement

could not have materially affected the verdict.



Admissibility of Kamook Ecoffey’s Testimony Relating Leonard Peltier’s Admission

[¶27.]       The circuit court permitted Ecoffey to testify that Leonard Peltier, in

the presence of Aquash, admitted killing an FBI agent. The court reasoned that

Ecoffey’s statement was not offered to prove the truth of the matter asserted: it was

offered to prove that because Aquash heard Peltier make the statement, AIM

leaders had a motive to kill Aquash. Graham looks at the question narrowly.

Graham views the truth of the matter asserted as the truth of whether Peltier made


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the admission. Graham argues that Ecoffey’s statement was hearsay because it

was offered to prove that Peltier actually admitted killing the FBI agent.

[¶28.]       We agree that Peltier was the declarant, and his out-of-court

statement was an admission that he killed an FBI agent. But the State did not

offer Ecoffey’s statement to prove that Peltier had actually killed the FBI agent.

The State first elicited Ecoffey’s testimony placing Aquash in the presence of Peltier

in the motor home. Ecoffey then testified to the nature of Peltier’s admission.

Thus, Ecoffey’s testimony was used to prove that Aquash overheard Peltier make

the highly self-incriminatory statement. When considered with the evidence that

AIM members suspected that Aquash was a government informant, Ecoffey’s

testimony was relevant to prove the State’s theory that AIM leaders and members

had a motive to kill Aquash. Because Ecoffey’s testimony was offered for a relevant

purpose other than proving the truth of Peltier’s statement, Ecoffey’s testimony was

not hearsay under SDCL 19-16-1(3) (Rule 801(c)).



Sufficiency of the Evidence

[¶29.]       Graham challenges the sufficiency of the evidence supporting the

jury’s verdict and the denial of his motions for judgments of acquittal. Challenges

to the sufficiency of the evidence are reviewed to determine “whether there is

evidence in the record which, if believed by the jury, is sufficient to sustain a

finding of guilt beyond a reasonable doubt.” Johnson, 2009 S.D. 67, ¶ 29, 771

N.W.2d at 371; State v. Larson, 1998 S.D. 80, ¶ 9, 582 N.W.2d 15, 17. “We must

accept the most favorable inferences that can be drawn from the evidence in

support of a verdict.” State v. Waugh, 2011 S.D. 71, ¶ 24, 805 N.W.2d 480, 485. The
                                         -19-
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jury exclusively judges witness credibility and weighs evidence. Consequently, “this

Court does not resolve conflicts in the evidence, or pass on the credibility of

witnesses, or weigh the evidence.” Johnson, 2009 S.D. 67, ¶ 10, 771 N.W.2d at 365.

“No guilty verdict will be set aside if the evidence, including circumstantial evidence

and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.”

Waugh, 2011 S.D. 71, ¶ 24, 805 N.W.2d at 486. When considering either a motion

for acquittal or a sufficiency of the evidence challenge, “a reviewing court must . . .

consider all the evidence the trial court had before it, including any evidence that is

later determined to be inadmissible.” State v. Frazier (Frazier I), 2001 S.D. 19, ¶

45, 622 N.W.2d 246, 261.

[¶30.]       To be guilty of felony murder, a defendant must have caused a death

while engaged in the perpetration of an underlying felony. State v. Rough Surface,

440 N.W.2d 746, 759 (S.D. 1989). Graham argues that there was no evidence that

Aquash’s death was the result of a kidnapping or that the death occurred while the

kidnapping was being committed. Graham specifically contends that there was no

evidence of the events occurring between the time Graham allegedly kidnapped

Aquash in Denver in late November 1975, and the time (on or around December 10

to December 12) the State alleged Aquash was killed. Graham contends that there

was no evidence showing Graham had contact with or proximity to Aquash during

those two weeks prior to her death. Graham contends that there was no evidence

suggesting that Aquash was held in captivity from late November through mid-

December 1975. Graham contends that it was uncontroverted that Aquash was

seen alive on or around December 15 without Graham, and that Aquash could have


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died weeks or months after December 15. Graham ultimately claims that a gap

existed in the causal chain between the underlying kidnapping and the murder,

rendering the jury’s felony murder conviction unsustainable. We disagree.

[¶31.]       Looking Cloud provided a causal connection between the kidnapping

and murder of Aquash that the jury could have adopted. Looking Cloud testified

that the kidnapping in Denver occurred around November 26 and ended with

Aquash’s death around November 28. We acknowledge Graham’s point that

Looking Cloud’s testimony was inconsistent with Candy Hamilton’s testimony that

she saw Aquash alive around December 15 outside the presence of Graham,

Looking Cloud, and Clarke. We also acknowledge that Looking Cloud’s estimated

time of death is different from other witnesses’ estimates. However, we do not

resolve such inconsistencies and ambiguities in reviewing a sufficiency of the

evidence challenge. See State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83;

Johnson, 2009 S.D. 67, ¶ 10, 771 N.W.2d at 365. Rather, “we accept the evidence

and the most favorable inferences fairly drawn therefrom, which will support the

verdict.” Johnson, 2009 S.D. 67, ¶ 10, 771 N.W.2d at 365. Consequently, under our

standard of review, we must accept Looking Cloud’s testimony regarding the

connection between the kidnapping and the murder.

[¶32.]       We also note that, notwithstanding the uncertainties regarding the

date of Aquash’s death, there was evidence that Aquash was shot by Graham in the

course of a kidnapping. Angie Janis, Yellow Wood, and George Palfy testified to the

kidnapping of Aquash in Denver. In a taped interview, Graham admitted that he

drove Aquash from Denver to South Dakota. Cleo Gates and Richard Marshall


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established that Graham remained involved in the kidnapping from Denver to their

house in Allen. Considering the extremely rural nature of this area, the jury could

have determined that Aquash was killed in proximity to the Gates-Marshall house.

Finally, Looking Cloud testified that Aquash was shot by Graham in the course of

the kidnapping. This evidence, and the most favorable inferences that can fairly be

drawn from it, were sufficient to support the verdict, including a causal connection

between the kidnapping and murder.

[¶33.]       Graham, however, argues that the only witness creating the causal

link was Looking Cloud. Graham points out that Looking Cloud was an accomplice

as a matter of law. Graham argues that his conviction cannot be sustained because

Looking Cloud’s testimony was not corroborated. We disagree.

[¶34.]       SDCL 23A-22-8 requires the corroboration of an accomplice’s

testimony. “A conviction cannot be had upon the testimony of an accomplice unless

it is corroborated by other evidence which tends to connect the defendant with the

commission of the offense. The corroboration is not sufficient if it merely shows the

commission of the offense, or the circumstances thereof.” Id. “Evidence is sufficient

to corroborate the testimony of an accomplice if it tends to ‘affirm the truth of the

testimony of the accomplice and establish the guilt of the accused.’” State v.

Talarico, 2003 S.D. 41, ¶ 39, 661 N.W.2d 11, 24 (quoting State v. Phyle, 444 N.W.2d

380, 382 (S.D. 1989)). “[C]orroboration may be found from ‘the defendant’s

opportunity and motive to commit the crime and his proximity to the place where

the crime was committed.’” Staunton v. State, 784 N.W.2d 289, 299 (Minn. 2010)

(quoting State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980)); see also State v.


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Moellar, 281 N.W.2d 271, 273 (S.D. 1979) (recognizing that “the association of a

defendant and an accomplice in the neighborhood where the crime was committed

may sufficiently connect the defendant with the crime to furnish the necessary

corroboration of the accomplice”).

[¶35.]       Looking Cloud’s testimony was corroborated by Janis, Palfy, and

Yellow Wood. Janis and Palfy testified that Aquash was tied up and placed in a car

by Graham and Clarke at Yellow Wood’s house in Denver. Yellow Wood testified

that Graham and Clarke took Aquash out of Yellow Wood’s house and placed

Aquash in the back of Clarke’s car, while Clarke, Graham, and Looking Cloud got in

the front of the car. Yellow Wood further testified that while this was happening,

Aquash was crying and told Yellow Wood that “if they take me from here, you will

never see me alive again.”

[¶36.]       Looking Cloud’s testimony was also corroborated by Gates and

Marshall. Gates and Marshall testified that Graham, Clarke, and Looking Cloud

brought Aquash to their house in Allen around 10:30 p.m. on a fall or winter night

in 1975. Gates testified that Graham, Clarke, or Looking Cloud came in and

“walked [Aquash] over to a chair in the living room and sat her down.” Gates

testified that Marshall then went into the bedroom with Clarke, Graham, and

Looking Cloud. Marshall emerged from the bedroom and asked Gates if they could

keep Aquash tied up in the basement. Gates refused. Graham, Clarke, Looking

Cloud, and Aquash then left, and Aquash’s body was ultimately found in proximity

to that residence. Thus, other witnesses corroborated Looking Cloud’s testimony

and Graham’s opportunity, motive, and complicity in the murder.


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[¶37.]       Looking Cloud’s testimony was further corroborated by the physical

evidence. Looking Cloud testified that Clarke obtained a “revolver” that Graham

used to kill Aquash. Looking Cloud also testified that he heard only one shot, and

Aquash’s body went over a bluff after Graham shot her. Aquash’s body was

discovered at the bottom of a bluff. The physical evidence also indicated that

Aquash was killed by a single bullet fired from a revolver.

[¶38.]       All of the foregoing evidence, including Graham’s admission of

participation in the kidnapping, corroborated Looking Cloud’s testimony and

Graham’s participation in the crime. Janis, Palfy, and Yellow Wood confirmed

Graham’s kidnapping of Aquash in Denver. Graham, when confronted about the

kidnapping and death admitted, “[O]kay, okay. I was there. I drove the car. I

helped take her back to Rapid City.” Gates and Marshall confirmed that the

kidnapping continued to their home, which further confirmed Looking Cloud’s

timeline. Their testimony also placed Graham in proximity to the location where

Aquash’s body was ultimately discovered, the place where Looking Cloud testified

that Graham shot Aquash.

[¶39.]       “[T]here is no requirement that every material fact testified to by the

accomplice be corroborated.” State v. Olhausen, 1998 S.D. 120, ¶ 10, 587 N.W.2d

715, 718. “Whether evidence corroborates an accomplice’s version of the facts is a

question for the jury.” Id. The jury chose to believe the State’s evidence and found

Graham guilty of felony murder. The evidence was sufficient to sustain a finding of

guilt beyond a reasonable doubt.




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Life Sentence Without Parole

[¶40.]       Graham argues that he was not subject to a life sentence without

parole because, in 1975, there was no statutory sentence of life without parole.

Graham contends that under SDCL 24-15-3 (1975), parole was required to be set for

all inmates. We review this question of statutory interpretation de novo. Kendall v.

John Morrell & Co., 2012 S.D. 13, ¶ 7, 809 N.W.2d 851, 854.

[¶41.]       Graham’s statutory argument was decided in Brim v. South Dakota

Board of Pardons & Paroles, 1997 S.D. 48, 563 N.W.2d 812. “[W]hile South Dakota

did at one time statutorily allow for parole of persons sentenced to life

imprisonment, this opportunity existed only for persons sentenced prior to July 1,

1913.” Id. ¶ 5. Because Graham was not sentenced within that time period, parole

was not statutorily authorized on his life sentence. See id. ¶¶ 5, 22.

[¶42.]       Graham also argues that his sentence amounted to cruel and unusual

punishment under the Eighth Amendment because he was acquitted of

premeditated murder, yet he was given the most severe punishment available in

1975. Graham’s constitutional challenge requires us to review his sentence for

gross disproportionality. See State v. Larsen-Smith, 2011 S.D. 93, ¶ 6, 807 N.W.2d

817, 819.

[¶43.]       A life sentence for felony murder, based upon a defendant’s underlying

felony of kidnapping and actions which “made the murder possible,” is not grossly

disproportionate as a matter of law. State v. Frazier (Frazier II), 2002 S.D. 66, ¶ 24,

646 N.W.2d 744, 752. Like the case in Frazier II, Graham made Aquash’s murder

possible, and he “may even have actively participated in its perpetration.” See id.

Indeed, the evidence reflects that Graham was involved in Aquash’s initial
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kidnapping, in ensuring that she was kept in captivity, in transporting her to her

place of death, and in the ultimate shooting. Graham’s sentence was not grossly

disproportionate.

[¶44.]       Graham finally argues that the holding in Enmund v. Florida, should

be extended to sentences of life without parole. 458 U.S. 782, 798, 102 S. Ct. 3368,

3377, 73 L. Ed. 2d 1140 (1982) (prohibiting the death penalty for felony murder

when the defendant did not take life, attempt to take life, or intend to take life). We

need not consider whether Enmund should be extended to life sentences because in

this case the evidence reflects that Graham took Aquash’s life. We acknowledge

Graham’s point that he was acquitted of premeditated murder. But we reject

Graham’s inference that the jury’s acquittal must be taken to mean that Graham

did not participate in killing Aquash. Nothing can be inferred from Graham’s

acquittal on the premeditated murder charge because the jury may have disposed of

that charge through leniency. See State v. Mulligan, 2007 S.D. 67, ¶ 11, 736

N.W.2d 808, 814 (explaining that innocence of one related homicide charge cannot

be inferred from an acquittal of another charge because, when there is an acquittal

on one of two interrelated charges, “the jury may have disposed of the inconsistent

charge through leniency”).

[¶45.]       Affirmed.

[¶46.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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