#25569-a-JKK

2011 S.D. 27

                             IN THE SUPREME COURT

                                    OF THE

                           STATE OF SOUTH DAKOTA

                                    * * * *

STATE OF SOUTH DAKOTA,                        Plaintiff and Appellee,

   v.

IVAN GOOD PLUME,                              Defendant and Appellant.

                                    * * * *

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

                                    * * * *

                      HONORABLE JOHN J. DELANEY
                               Judge

                                    * * * *

MARTY J. JACKLEY
Attorney General

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

KEVIN S. LEWIS                                Attorney for defendant
Rapid City, South Dakota                      and appellant.

                                    * * * *
                                              CONSIDERED ON BRIEFS
                                              ON FEBRUARY 16, 2011

                                              OPINION FILED 06/22/11
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KONENKAMP, Justice

[¶1.]        Defendant, a Native American, argues that he was denied due process

in sentencing when the judge voiced a racial stereotype to describe his violent

behavior under the influence of alcohol. The judge used the term “go native.” In

defendant's view, the remark was “improper” and “gave the impression of bias and

prejudice” entitling him to resentencing before another judge. Although the term

was ill chosen, upon examining the judge’s entire remarks, we detect no risk of

actual bias based on objective and reasonable perceptions, and thus, we affirm.

                                   Background

[¶2.]        Defendant Ivan Good Plume and Mary Flat Lip started dating in

November 2008. Once they moved in together, Flat Lip saw a change in Good

Plume’s behavior. He was often drunk, violent, and verbally abusive. One evening,

he struck her with such force that he broke her nose. In early 2009, Flat Lip ended

their relationship. But Good Plume would not accept her decision. He called her

constantly. His attempts to maintain contact with her increased in May 2009, when

she started a relationship with Michael Gregg. After she moved in with Gregg at

his apartment in the Budget Inn Motel, Flat Lip received a letter from Good Plume

calling her degrading names and threatening to hurt her and Gregg.

[¶3.]        On May 21, 2009, while Gregg was at work, Flat Lip went to a party at

the Surfwood Apartments. There, she ran into Good Plume, who was “smothering .

. . and continually grabbing and trying to have [her] kiss him and hold him.” Flat

Lip left the party and returned to Gregg’s apartment. When Gregg returned from

work, they ate together and watched television. Good Plume telephoned and

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demanded to talk to Flat Lip. He threatened to beat up Gregg. Sometime after the

call ended, Gregg and Flat Lip went to bed. They awoke to knocking at the door,

knocking that turned into loud pounding. Suddenly, the door flew open — Good

Plume was standing there with a shovel held in the air. Gregg ran to the door to

force Good Plume out. Flat Lip called 911. Good Plume struck Gregg hard enough

with the shovel to leave a lump on his head and a mark on his shoulder.

[¶4.]         In response to the 911 call, Rapid City Police Officer James Hansen

arrived at the scene. He noticed the broken door and found a shovel on the

premises. Good Plume was gone, but was arrested later that day. He was indicted

on one count of first-degree burglary in violation of SDCL 22-32-1(3), and two

alternative counts of aggravated assault in violation of SDCL 22-18-1.1(1) or (2).

The State later filed an amended part two habitual offender information. At the

end of the jury trial, the judge granted Good Plume’s motion for a judgment of

acquittal on the first-degree burglary charge. The jury returned a verdict of guilty

on count two of aggravated assault. Good Plume was later found guilty in a court

trial of the part two information. He was sentenced to eighteen years in prison. In

this appeal, he asserts that the sentencing judge, “in referring to a pattern of

drunken violence by Good Plume as going native,” acted improperly and violated his

federal and state due process rights. He also claims that the judge abused his

discretion in admitting into evidence Good Plume's letter to Flat Lip.*



*       Standard of Review: We ordinarily review a defendant’s sentence for an
        abuse of discretion. State v. Overbey, 2010 S.D. 78, ¶ 13, 790 N.W.2d 35, 40
        (citation omitted). But because Good Plume claims his constitutional right to
        a fair sentencing was denied by the judge’s bias, we review his constitutional
                                                                    (continued . . .)
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                              Analysis and Decision

[¶5.]        Good Plume seeks resentencing before another judge. He argues that

the judge violated his right to due process at sentencing when he engaged in racial

stereotyping. Good Plume avers that by making the statement “go native” in

describing Good Plume’s behavior, the judge not only evinced his personal bias

against him but also used race as a sentencing factor, a constitutionally

impermissible consideration. The State, on the other hand, contends that a review

of the entire transcript reveals no “personal enmity or prejudice by the judge

against Good Plume.”

[¶6.]        A defendant has a due process right to a fair and impartial judge. In re

Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955). We presume

our trial judges act impartially unless a specific and substantial showing can be

made to the contrary. State v. Page, 2006 S.D. 2, ¶ 16, 709 N.W.2d 739, 750

(citation omitted). A judge’s expression of opinion based on observation of the

witnesses and evidence in the courtroom does not prove bias. State v. Hoadley, 2002

S.D. 109, ¶ 33, 651 N.W.2d 249, 257 (citation omitted). Prejudice is an

             attitude of personal enmity towards the party or in favor of the
             adverse party to the other party’s detriment. It is not the mere
             possession of views regarding the law or the conduct of a party.
             Prejudice is in the personal sense rather than in the judicial
             sense and refers to a mental attitude or a disposition of the
             judge towards a party. In order for the alleged bias and
             prejudice to be disqualifying, it must stem from an extrajudicial
             source and result in an opinion on the merits on some basis

__________________
(. . . continued)
         claim de novo. See State v. Tiegen, 2008 S.D. 6, ¶ 14, 744 N.W.2d 578, 585
         (citations omitted). Evidentiary rulings are reviewed for an abuse of
         discretion. Von Sternberg v. Caffee, 2005 S.D. 14, ¶ 13, 692 N.W.2d 549, 554.

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             other than what the judge learned from participation in the
             case[.]

Id. ¶ 33 (quoting In re C.N.H., 998 S.W.2d 553, 560 (Mo. Ct. App. 1999)).

[¶7.]        Obviously, racial bias would constitute a personal prejudice, and racial

prejudice can hold no sway in our courts. See Batson v. Kentucky, 476 U.S. 79, 106

S. Ct. 1712, 1728, 90 L. Ed. 2d 69 (1986) (Marshall, J., concurring); Turner v.

Murray, 476 U.S. 28, 35-38, 106 S. Ct. 1683, 1687-89, 90 L. Ed. 2d 27 (1986).

Numerous courts have held that race and national origin are constitutionally

impermissible factors to consider in sentencing. See, e.g., United States v.

Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991); United States v. Edwardo-Franco,

885 F.2d 1002, 1005 (2d Cir. 1989). Indeed, relying on a racial stereotype bears no

reasonable nexus to proper sentencing considerations. See State v. Harris, 786

N.W.2d 409, 427 (Wis. 2010).

[¶8.]        Was the sentencing judge’s “go native” remark evidence of racial

prejudice? To answer this question, we must first examine the remark in context.

Before pronouncing sentence, Judge Delaney said:

             My problem is really simple, Mr. Good Plume. The answer to it
             is, perhaps you might be the greatest human being on the face of
             the earth if you didn’t drink. But I’ve got about 35 or 40
             criminal entries in a five year span. And I would assume every
             single one of them has to do with drinking. A good share of them
             have to do with violence. A fair number of them have to do with
             women.

             And you drink and your ability to control behavior is gone. I
             mean, it’s not even mildly gone. It’s completely absolute flipping
             berserk. You dodged a potential life sentence on a slam dunk
             burglary charge because it was charged under the wrong
             subsection. The other one was an absolute, ice cold no brainer.
             And so you got a break on that.


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             And my concern with you, Mr. Good Plume, is no matter how
             good a guy you are sober, there is absolutely no way known to
             God to keep you from drinking. And once you go drinking, you
             go sideways. That’s the problem.

             I know of no cure except absolute, complete, 100 percent freedom
             from drinking and drugs of any sort, type, or nature. And as
             your crimes are violent, you put me in a position to where if I
             say, well, I think you can do that, and you go out and don’t do it,
             then I hold myself personally responsible for the harm and
             injury you cause.

             And I don’t doubt you are extremely bright. I don’t doubt you
             have a great many good qualities. And unfortunately, when you
             drink—and this was not my term. It was used by a young
             Native American in extremely violent circumstances—and he
             said go native. Now I am not sure what it means but it
             smacked of huge violence.

             And that’s absolutely descriptive of the event that went down
             that night. Absolutely descriptive of the events that brought you
             here. And I attribute it to nothing more than your inability to
             control raging anger when you are under the influence of
             alcohol. I don’t see any response to that.

(Emphasis added.)

[¶9.]        Although use of the phrase “go native” was undoubtedly ill chosen, in

context, the judge’s comments do not explicitly articulate racial bias or prejudice

directed toward Good Plume. The judge never referred directly to Good Plume’s

race. Nonetheless, the “go native” remark might be taken as giving the appearance

of racial stereotyping. By what standard, then, do we determine when the due

process clause requires judicial disqualification based on bias?

[¶10.]       The United States Supreme Court recently explained that “[t]he

difficulties of inquiring into actual bias . . . simply underscore the need for objective

rules.” Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2263, 173 L. Ed. 2d

1208 (2009) (not published in the United States reporter). Thus, an “objective

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standard” must be applied “that do[es] not require proof of actual bias.” Id. A

litigant may be denied due process when there is a “serious risk of actual bias —

based on objective and reasonable perceptions[.]” Id. Accordingly, while the due

process clause does not require proof of actual bias for judicial disqualification, the

mere appearance of bias is not sufficient. Rather, in the objective assessment of the

circumstances in a particular case, there must exist “‘the probability of actual bias

on the part of the judge or decisionmaker [that] is too high to be constitutionally

tolerable.’” Id. at 2257 (citation omitted). And only the most “extreme facts” would

justify judicial disqualification based on the due process clause. Id. at 2265-66.

Where only an appearance of bias is present, recourse must be sought in state rules

for disqualification: “Because the codes of judicial conduct provide more protection

than due process requires, most disputes over disqualification will be resolved

without resort to the Constitution.” Id. at 2267.

[¶11.]        Here, Good Plume has not presented “‘the probability of actual bias on

the part of the judge . . . [that] is too high to be constitutionally tolerable.’” See id.

at 2257 (citation omitted). On the contrary, we see no “serious risk of actual bias —

based on objective and reasonable perceptions.” See id. at 2263. The judge

considered Good Plume’s criminal history, his uncontrollable and habitual drinking,

his inclination to commit crime, and his potential for future violent offenses. While

the judge used the expression “go native,” there is scant indication that the

statement reflected a reliance on Good Plume’s status as a Native American. In

fact, the judge emphasized that he attributed the incident “to nothing more than

[Good Plume’s] inability to control [his] raging anger when [he] is under the


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influence of alcohol.” From a review of the entire sentencing transcript, we conclude

that the sentence was based on facts introduced and events occurring in the course

of the current proceedings or prior proceedings and not on racial stereotype or

prejudice. See Page, 2006 S.D. 2, ¶ 16, 709 N.W.2d at 750-51. Good Plume has not

met his burden of making a specific and substantial showing that racial or personal

bias was used as an aggravating factor in his sentence.

[¶12.]       Good Plume next argues that it was an abuse of discretion to admit

into evidence the threatening letter he sent to Flat Lip. To Good Plume, the letter

constitutes Rule 404(b) evidence, which is “[e]vidence of other crimes, wrongs, or

acts.” See SDCL 19-12-5 (Rule 404(b)). Good Plume does not dispute that he

authored the letter, or that it was received by Flat Lip shortly before the assault on

Gregg. Rather, he maintains that because the letter contains evidence of other acts

and wrongs and is highly prejudicial, the judge was required to engage in the two-

part probative versus prejudice analysis before admitting Rule 404(b) evidence. See

State v. Huber, 2010 S.D. 63, ¶ 56, 789 N.W.2d 283, 301.

[¶13.]       The letter was admitted, not as proof of other wrongs, crimes, or acts,

but as res gestae evidence. “Res gestae evidence has been defined as ‘the events at

issue or others contemporaneous with them.’” State v. Fisher, 2010 S.D. 44, ¶ 19,

783 N.W.2d 664, 671 (quoting Bryan A. Garner, Dictionary of Modern Legal Usage

(2d ed. 1995)). Res gestae is “the well-recognized exception to Rule 404(b).” State v.

Goodroad, 1997 S.D. 46, ¶ 10, 563 N.W.2d 126, 130 (citation omitted). We recently

explained res gestae evidence to be a “‘matter incidental to the main fact and

explanatory of it, including acts and words which are so closely connected therewith


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as to constitute a part of the transaction, and without knowledge of which the main

fact might not be properly understood.’” Fisher, 2010 S.D. 44, ¶ 19, 783 N.W.2d at

671 (quoting Martinez v. People, 132 P. 64, 65 (Colo. 1913)).

[¶14.]       The letter was not admitted to prove that Good Plume engaged in

other wrongs, crimes, or acts. As the judge found, the letter was necessary to prove

Good Plume’s intent to harm Gregg. Moreover, the jury was given a limiting

instruction. From our review of the letter and its use at trial, the judge was not

obliged to consider the requirements of Rule 404(b) before admitting it. The letter

details matters incidental to the case and gives context to the essential facts. It was

so closely connected to the assault that “without knowledge of [it] the main fact

might not be properly understood.” See id. We see no abuse of discretion in

admitting the letter.

[¶15.]       Affirmed.

[¶16.]       GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and MEIERHENRY, Retired Justice, concur.




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