State v. Cottier

#24411-a-JKM

2008 SD 79

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JAMES ALBERT COTTIER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOSEPH NEILES
Judge

* * * *

LAWRENCE E. LONG
Attorney General

ANDREW KNECHT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

MATTHEW L. OLSON
JEFF LARSON
Office of the Minnehaha
County Public Defender Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *
ARGUED ON APRIL 24, 2008

OPINION FILED 08/06/08
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MEIERHENRY, Justice

[¶1.] A jury convicted James Cottier (Cottier) of Manslaughter in the First

Degree with a Dangerous Weapon, in violation of 22-16-15(3) (2005).1 Cottier

appeals and we affirm.

FACTS

[¶2.] On June 21, 2005, a worker found the badly cut-up body of Cameron

Red Star on the grounds of the South Dakota School for the Deaf in Sioux Falls,

South Dakota. The prior evening, Red Star, Cottier, and a third individual, Wesley

Running, were seen together at the Salvation Army and area convenience stores.

The three homeless men spent the night drinking. Workers at the Salvation Army

and convenience stores testified that the men smelled of alcohol and appeared

intoxicated. The Salvation Army employees tested the blood alcohol levels of all

three and found they all had consumed significant levels of alcohol. Running’s blood

alcohol level was so high that he was not allowed to sleep at the facility. The three

ate at the Salvation Army and then left together.

[¶3.] The trio proceeded to a convenience store to purchase more alcohol.

While consuming the alcohol, Cottier claimed that Red Star and Running began to

fight over an eagle feather in Running’s possession. Red Star eventually forcibly

1. The pertinent portion of SDCL 22-16-15 (2005) provided:
Homicide is manslaughter in the first degree when perpetrated:
***
(3) Without a design to effect death, but by means of a
dangerous weapon;
***
Manslaughter in the first degree is a Class 1 felony.

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took the feather from Running who then fled. Later that night an officer picked up

Running and took him to a detoxification facility.

[¶4.] In the meantime, Red Star and Cottier went to another convenience

store and bought two forty-ounce bottles of Hurricane Malt Liquor. The two then

found shelter under an entryway to a building on the campus of the South Dakota

School for the Deaf. Cottier testified at trial that he sat on a bench and drank as

Red Star began pacing back and forth, boasting that he was a member of the “War

Lord” gang.

[¶5.] Cottier testified that Red Star told him that two families Cottier knew

to be violent were going to harm Cottier. According to Cottier, Red Star then hit

him in the head repeatedly, choked him, pulled him around by the hair and

slammed his head against a brick wall. Cottier testified that while he and Red Star

were wrestling and with Red Star on top of him, Cottier grabbed his beer bottle and

broke it against the ground. Cottier then used the broken bottle to stab Red Star

repeatedly in the face, neck and torso. Cottier claimed that Red Star continued to

assault him, but eventually ended the attack and lay on the ground motionless for

about thirty seconds. Cottier admitted that he then picked up a nearby rock with

both hands and hit Red Star in the head two or three times, killing him. Cottier

admitted that Red Star’s eyes were open and that he looked at Cottier before Cottier

struck him with the rock. After the fatal blows, Cottier sat on a nearby bench to

drink a beer and catch his breath. Cottier admitted that he checked Red Star’s

pulse and looked in Red Star’s pockets. He also admitted taking a bag of marijuana

from Red Star’s body. When police arrived at the scene, Red Star’s pockets were

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turned out and his identification and other personal items were lying close to his

body.

[¶6.] Cottier was charged and tried on three counts: 1) first degree murder

in violation of SDCL 22-16-4; 2) first degree manslaughter “in a heat of passion” in

violation of SDCL 22-16-15(2); and 3) first degree manslaughter “by means of a

dangerous weapon” in violation of SDCL 22-16-15(3). Cottier was found not guilty

on counts 1 and 2, but was found guilty on count 3 of killing Cameron Red Star

“without a design to effect death, but by means of a dangerous weapon, a rock.”

Cottier appeals and raises the following issues:

ISSUES

1) Whether the trial court erred when instructing the jury on
self defense.
2) Whether the trial court erred in denying defendant’s motion
to suppress his statements to police.
3) Whether the trial court erred by not admitting the victim’s
prison record or video of Wesley Running’s interrogation.

DECISION

1) Whether the trial court erred when instructing the jury
on self defense.

[¶7.] We have clarified our standard of review for jury instructions as

follows:

A trial court has discretion in the wording and arrangement of
its jury instructions, and therefore we generally review a trial
court’s decision to grant or deny a particular instruction under
the abuse of discretion standard. However, no court has
discretion to give incorrect, misleading, conflicting, or confusing
instructions: to do so constitutes reversible error if it is shown
not only that the instructions were erroneous, but also that they
were prejudicial.

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State v. Packed, 2007 SD 75, ¶17, 736 NW2d 851, 856 (quoting Vetter v. Cam Wal

Elec. Co-op., Inc., 2006 SD 21, ¶10, 711 NW2d 612, 615) (internal citations omitted).

Erroneous instructions are prejudicial under SDCL 15-6-61
when in all probability they produced some effect upon the
verdict and were harmful to the substantial rights of a party.
Accordingly, when the question is whether a jury was properly
instructed overall, that issue becomes a question of law
reviewable de novo. Under this de novo standard, “we construe
jury instructions as a whole to learn if they provided a full and
correct statement of the law.”

Papke v. Harbert, 2007 SD 87, ¶13, 738 NW2d 510, 515 (quoting Vetter, 2006 SD 21,

¶10, 711 NW2d at 615 (quoting State v. Frazier, 2001 SD 19, ¶35, 622 NW2d 246,

259 (citations omitted)).

[¶8.] The trial court instructed the jury on the defense of justifiable

homicide structured around SDCL 22-16-34 (2005) and SDCL 22-16-35 (2005). The

statutes provided as follows:

Homicide is justifiable when committed by any person when
resisting any attempt to murder such person, or to commit any
felony upon him or her, or upon or in any dwelling house in
which such person is.

SDCL 22-16-34 (2005).

Homicide is justifiable when committed by any person in the
lawful defense of such person, or of his or her husband, wife,
parent, child, master, mistress, or servant when there is
reasonable ground to apprehend a design to commit a felony, or
to do some great personal injury, and imminent danger of such
design being accomplished.

SDCL 22-16-35 (2005). Cottier had no objection to the trial court’s instructions

based on the two statutes. He did, however, object to the court giving six additional

instructions numbered 31 to 36. Cottier objected to Instructions 31 and 36 because

they both instructed on the right of self defense against an assault not rising to the

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level of a felony aggravated assault and the lawful degree of force in defending

against a non-felony assault.

[¶9.] Instruction 32 explained that one being attacked can legally defend

oneself and pursue the attacker if it is reasonable and necessary. Instruction 33

explained what constituted a lawful self defense against an assault with fists and

hands. Instruction 34 explained a situation under which deadly force could not be

used in self defense. Instruction 35 explained that a person defending “against

unlawful attack has to stop the use of force as soon as the danger of attack ended.”

When settling instructions, the defense argued that the six instructions were not

relevant to the defense of justifiable homicide. Cottier claimed that the challenged

instructions limited the language from justifiable homicide against “any felony” to

self defense against “aggravated assault” or “assault” and were philosophically

inconsistent and conflicting statements of the law. Cottier claimed that to infuse

the additional irrelevant instructions concerning retreat and the necessity to stop

when the danger ends only served to confuse the jury and blurred the true issue of

justification.

[¶10.] The trial court overruled Cottier’s objections and explained on the

record that it wanted the jury to understand the law of “self defense” fully,

including the law of self defense against assault not rising to the level of a felony

assault and that it anticipated a jury question about non-felony assaults if it did not

give the additional instructions. 2 Cottier claims that the trial court’s failure to

2. The trial court gave the following explanation for giving the non-felony self
defense instructions:
(continued . . .)
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properly instruct the jury denied him his right to a fair trial in violation of the Due

Process Clause of the Fifth and Fourteenth Amendments to the United States

Constitution and Article VI, Section two of the South Dakota Constitution. US

Const amend V and XIV; SD Const art VI, § 2.

[¶11.] Had the trial court only instructed the jury on justifiable homicide

without the additional six instructions, it would have been less confusing for the

jury. Self defense against non-felony assault was not an issue in the case and

superfluous to the jury’s decision. Nevertheless, the defense originally proposed

defense instructions 9 and 10, which clearly introduced the concept of self defense

against a non-felony assault. 3 The record does not reflect that either proposed

____________________
(. . . continued)

I understand that [defense counsel] may not be urging that Mr. Red
Star did anything other than a felonious assault upon your client but
the jury might conclude that, for instance, that the assault that Mr.
Red Star committed, if they find that he did commit an assault, that it
was an assault but it didn’t rise to the level of a felony. Then the jury,
I would anticipate, would be sending me out questions saying what
does this mean if it wasn’t a felony. I just don’t want to have to answer
a whole lot of questions about that if, in fact, it does come to that.

3. Proposed defense instructions 9 & 10 provided as follows:

DEFENDANT’S PROPOSED JURY INSTRUCTION #9
If you find that the defendant apprehended an assault by Cameron
Red Star, but the assault would not rise to the level of the felony of
aggravated assault, then the defendant still had a right of self-defense, but
said defense is restricted or limited.
If you find that the defendant apprehended an assault by Cameron
Red Star, but that assault would not rise to the level of a felony, then it is
still lawful for the defendant to use or attempt or offer to use force or violence
against or toward Cameron Red Star, but the force or violence used by the
defendant may be employed only to prevent or attempt to prevent an offense
against his person.
(continued . . .)
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instruction was withdrawn. In fact, even after the court decided to give the six

challenged instructions, the defense urged the trial court to substitute defense

instructions 9 and 10 for two of the court’s instructions. Consequently, since the

court’s instructions 31 and 36 mirror defense proposed instructions 9 and 10,

Cottier has shown no prejudice in giving those two instructions. Additionally,

Cottier admits that two of the instructions, Instructions 33 and 34, actually

benefited the defense. Thus, even if Instructions 33 and 34 were irrelevant, no

prejudice was shown.

[¶12.] Of the two remaining, Instruction 32 instructed that Cottier had the

right to defend himself against an attacker and did not have to retreat, but could, if

it appeared reasonable and necessary, pursue the attacker until he was secure from

danger, “even if safety may have been more easily gained by withdrawing from the

scene.” When this instruction is read in conjunction with the trial court’s

instructions on justifiable homicide, it is an accurate statement of the law. Cottier’s

defense of justifiable homicide required a showing that he was defending against

“imminent danger” of “great personal injury” or “attempted murder” or the attempt

____________________
(. . . continued)

DEFENDANT’S PROPOSED JURY INSTRUCTION #10
The kind and degree of force which a person may lawfully use in self-
defense to an assault he does not apprehend to be a felony assault are limited
by what a reasonable person in the same situation, seeing what the
defendant sees and knowing what the defendant knows, then would believe
to be necessary. Any use of force beyond that is regarded by the law as
excessive. Although a person in such a situation may believe that he is
acting, and may act in self defense, that person is not justified in using a
degree of force clearly in excess of that apparently and reasonably necessary
under the existing facts and circumstances.

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“to commit a felony upon him.” See SDCL 22-16-35; SDCL 22-16-34. Instruction

32, by contrast, simply explained that Cottier was not required to retreat from the

attack and could pursue the attacker until free from danger. If anything, the extra

instruction permitting the “pursuit” of the attacker helped, rather than hurt,

Cottier’s defense. Under the facts of the case, it was not error to give Instruction

32.

[¶13.] The final challenged instruction, Instruction 35, provided as follows:

A person who defends against unlawful attack must stop the use
of force as soon as the danger of attack has ended. If it would
appear to a reasonable person in the same position that there is
no further danger, then there should be no further force.

Cottier claims that the “reasonable person” standard used in the instruction is not

required for a justifiable homicide defense. We disagree. When a defendant claims

justifiable homicide because he was threatened with serious bodily injury, the

responding “force becomes limited to that which is reasonable in the circumstances,

and, as the threat of harm dissipates, so does the reasonableness of the force used.”

State v. Jaques, 428 NW2d 260, 265-66 (SD 1988); see also State v. Pellegrino, 1998

SD 39, ¶16, 577 NW2d 590, 596-97 (defining justifiable homicide statute as follows:

when persons are “placed in apparent imminent danger of great personal injury,

[they] have the right to stand their ground and meet force with force, even to the

extent of taking life if such persons actually believe, and the circumstances and

surrounding conditions are such that a reasonably cautious and prudent person

would believe, danger of death or great personal injury to be imminent at the hands

of the assailant”) (citations omitted) (emphasis added).

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[¶14.] Cottier also claims that a jury question concerning Instruction 35

supports his argument that Instructions 31 through 36 were confusing and

prejudicial. The jury asked: “Does Instruction 35, where it speaks of unlawful

attack. Does this instruction include a felony assault or a lesser offense?” The trial

court’s answer instructed the jury to read Instruction 35 together with the prior

instructions defining justifiable homicide. The defense agreed to the court’s answer

without conceding the previous objection that the instruction was philosophically

inconsistent with justifiable homicide and unsupported by the evidence.

Ultimately, Cottier’s main disagreement with Instruction 35 was that is was

unnecessary because the justifiable homicide instruction was complete by itself,

since the justifiable homicide instruction required “imminent danger.” Although

this instruction may not have been necessary, as the defense argues, it is not an

incorrect statement of the law. See Pellegrino, 1998 SD 39, ¶16, 577 NW2d at 596-

97.

[¶15.] Thus, because the defense can show no prejudice from instructions 31,

33, 34, or 36, or that instructions 32 and 35 are incorrect statements of the law, the

court’s instructions did not result in prejudicial error. See Papke, 2007 SD 87, ¶13,

738 NW2d at 515.

2) Whether the trial court erred in finding that defendant
voluntarily waived his Miranda rights.

[¶16.] Cottier next claims that statements he made to law enforcement after

being taken into custody should have been suppressed because he was unable to

knowingly and intelligently waive his Miranda rights. Therefore, he claims the

questioning violated his rights under the Fifth and Fourteenth Amendments to the

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United States Constitution. See State v. Morato, 2000 SD 149, ¶11, 619 NW2d 655,

659. Cottier describes himself as unable to waive his rights because: 1) he had

barely slept the previous night; 2) he was drunk and possibly high on marijuana at

the time; 3) he allegedly had his head slammed into a brick wall by Cottier; 4) he

was fatigued and was falling asleep and talking to himself; 5) he was confused; 6) he

was “slow” and mentally ill; and 7) he was schizophrenic and not medicated.

According to Cottier, the accumulation of these circumstances indicated he was

unable to fully understand his Miranda rights, and fully appreciate the

consequences of waiving his rights.

[¶17.] Cottier also claims that the interrogating detective used coercive

tactics by questioning him knowing that he was intoxicated, tired, mentally ill, off

his medications, and sleepy. Cottier claims that based on the totality of the

circumstances his statements to the detective were involuntary, and that the trial

court abused its discretion when it failed to suppress the statements.

[¶18.] We review a trial court’s grant or denial of a motion to suppress

alleged constitutional violations de novo. State v. Johnson, 2007 SD 86, ¶21, 739

NW2d 1, 8-9 (citation omitted). To establish that a defendant waived his Miranda

rights “the State must show [by a preponderance of the evidence] that (1) the

relinquishment of the defendant’s rights was voluntary and (2) the defendant was

fully aware that those rights were being waived and of the consequences of waiving

them.” State v. Tuttle, 2002 SD 94, ¶9, 650 NW2d 20, 26 (citation omitted).

[¶19.] When analyzing the voluntariness of a confession we perform a de novo

review of the record; however, we give “deference to the trial court’s factual

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findings.” Johnson, 2007 SD 86, ¶29, 739 NW2d at 11 (citation omitted).

Ultimately, “[t]he voluntariness of a confession depends on the absence of police

overreaching. [Colorado v. Connelly], 479 US [157,] 170, 107 SCt [515,] 523, 93

LEd2d [473,] 486. Confessions are not deemed voluntary if, in light of the totality of

the circumstances, law enforcement officers have overborne the defendant’s will.”

Tuttle, 2002 SD 94, ¶20, 650 NW2d at 30 (other citations omitted). “The burden of

proving the voluntariness of a confession is the same as the burden for showing the

voluntariness of a Miranda waiver. The State must establish the voluntariness of a

confessant’s admission by a preponderance of the evidence.” Id. ¶21, 650 NW2d at

30 (citation omitted). See Cordell v. Weber, 2003 SD 143, ¶29, 673 NW2d 49, 58

(citation omitted) (“The relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion or deception.”). When analyzing allegations of police

coercion:

[t]he factual inquiry centers on (1) the conduct of law
enforcement officials in creating pressure and (2) the suspect’s
capacity to resist that pressure. On the latter factor, we examine
such concerns as the defendant’s age; level of education and
intelligence; the presence or absence of any advice to the
defendant on constitutional rights; the length of detention; the
repeated and prolonged nature of the questioning; the use of
psychological pressure or physical punishment, such as
deprivation of food or sleep; and the defendant’s prior experience
with law enforcement officers and the courts. Finally,
[d]eception or misrepresentation by the officer receiving the
statement may also be factors for the trial court to consider;
however, the police may use some psychological tactics in
interrogating a suspect.

Tuttle, 2002 SD 94, ¶22, 650 NW2d at 31 (emphasis added citations and quotations

omitted). See also United States v. Gaddy, No. 07-2625 p7 (8thCir filed July 14,

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2008) (citations omitted) (noting that “[s]leeplessness, alcohol use and drug use are

relevant”; however, they “do not automatically render a confession involuntary.”

“[T]he test is whether these mental impairments caused the defendant’s will to be

overborne.”). Whether analyzing the propriety of a waiver or the voluntariness of a

confession, this Court considers the totality of the circumstances. Tuttle, 2002 SD

94, ¶14, 650 NW2d at 28; Johnson, 2007 SD 86, ¶29, 739 NW2d at 11.

[¶20.] Prior to questioning, the detective read Cottier his Miranda rights, and

he responded that he understood his rights. The detective then asked Cottier: “do

you wish to talk to me, do you want to waive your rights and sit here and talk to

me,” Cottier responded “I wish, I wish, I wish to talk to you.” The detective then

asked Cottier to sign a Miranda warning card; Cottier signed the card and again

said “yeah, I wish to talk to you.”

[¶21.] In this case, the trial court found that: 1) Cottier was thirty-six years

old, with a ninth grade education; 2) Cottier “was easily able to give his name, spell

it, write or print it, and give his date of birth and social security number from

memory”; 3) Cottier “had experience in many criminal cases and had felony

convictions including a 1991 escape, 1993 hit and run with injury, 1996 assault and

2001 assault by a confined person”; 4) Cottier exhibited no evidence that he “was too

tired to voluntarily speak with law enforcement”; 5) Dr. Alsgaard, a board certified

psychiatrist, testified that a subsequent competency examination of Cottier

“revealed that [he] did possess a considerable knowledge and understanding of the

charges, penalties, rights, procedures, defenses and tactical considerations of a

criminal case”; 6) “the entire interview was friendly and casual”; 7) Cottier did not

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appear to be in pain or discomfort; 8) Cottier was not threatened or promised

anything for his answers; and 9) the detective did not at any time use any coercive

interrogation techniques on Cottier.

[¶22.] Still, Cottier contends that because he was drunk, tired, slow and

mentally ill, he could not understand the gravity and consequences of his actions.

However, the trial court found that Cottier did understand the gravity and

consequences of his action. It also found that Cottier was cognizant enough to

provide a false name when picked up by police and to fabricate a detailed lie to

explain away his injuries. Cottier later recanted the lie and admitted that he

received the injuries from the altercation with Red Star. The trial court noted that

at one point Cottier spontaneously blurted out to the detective: “I’ve got an alibi.”

A review of the taped interview supports the trial court’s findings. Additionally, the

detective testified that he could smell alcohol on Cottier but did not observe any

indication that Cottier’s thinking or behavior were impeded by alcohol consumption.

Based on the totality of the circumstances, the trial court did not err in concluding

that Cottier knowingly, intelligently and voluntarily waived his Miranda rights.

[¶23.] Cottier also claims that the detective’s subsequent interrogation

constituted coercion making his statements involuntary. Cottier’s support for this

argument mirrors that for his invalid waiver claim. Again, Cottier claims that his

mental and physical conditions made it impossible for the detective to question him

without being coercive. We disagree. A review of the taped interview along with

the findings of the trial court, discussed above, demonstrates that the detective did

not use any coercive techniques, deceptive tactics, psychological pressure or physical

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punishment to obtain Cottier’s confession. Likewise, it does not appear that

Cottier’s mental or physical conditions made him overly susceptible to the pressures

of the interrogation. Consequently, the trial court did not err when it concluded,

based on the totality of the circumstances, that Cottier’s statements were voluntary.

3) Whether the trial court erred by not admitting the entire
video of Wesley Running’s interrogation and the victim’s
prison record.

[¶24.] Cottier offered the entire video of Running’s interrogation under the

catchall/residual hearsay exception. SDCL 19-16-35. 4 He also offered Red Star’s

prison record as character evidence under SDCL 19-12-4(2) 5 (Rule 404(a)), and as

4. SDCL 19-16-35 provides:
A statement not specifically covered by any of §§ 19-16-30 to 19-
16-34, inclusive, but having equivalent circumstantial
guarantees of trustworthiness, is not excluded by § 19-16-4 if the
declarant is unavailable as a witness and if the court determines
that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it is
offered than any other evidence which the proponent can
procure through reasonable efforts; and
(3) The general purposes of these rules and the interests of
justice will best be served by admission of the statement into
evidence.
However, a statement may not be admitted under this section
unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, his
intention to offer the statement and the particulars of it,
including the name and address of the declarant.

5. SDCL 19-12-4 (Rule 404(a)) provides:
Evidence of a person's character or a trait of his character is not
admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion, except:
(1) Evidence of a pertinent trait of his character offered by an
accused, or by the prosecution to rebut the same;
(continued . . .)
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other acts evidence, under SDCL 19-12-5 6 (Rule 404(b)). This evidence was offered

to demonstrate Red Star’s propensity for violence, to corroborate Cottier’s

description of Red Star’s tenacious attack and to justify Cottier’s fear of Red Star.

The court denied admission of both; however, it did permit the jury to view portions

of Running’s video taped interview.

[¶25.] We presume that evidentiary rulings by trial courts are correct. State

v. Zakaria, 2007 SD 27, ¶22, 730 NW2d 140, 146. We review alleged errors under

an abuse of discretion standard. Id. “An abuse of discretion refers to a discretion

exercised to an end or purpose not justified by, and clearly against reason and

evidence.” State v. Beckley, 2007 SD 122, ¶20, 742 NW2d 841, 847 (citation

omitted). Even if we find error, Cottier must demonstrate that the error was

prejudicial to his case. “‘Prejudicial error’ is error which in all probability must

have produced some effect upon the jury’s verdict and is harmful to the substantial

____________________
(. . . continued)
(2) Evidence of a pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to rebut the
same, or evidence of a character trait of peacefulness of the
victim offered by the prosecution in a homicide case to rebut
evidence that the victim was the first aggressor;
(3) Evidence of the character of a witness, as provided in §§ 19-
14-8 to 19-14-16, inclusive.

6. SDCL 19-12-5 (Rule 404(b)) provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.

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rights of the party assigning it.” State v. Krebs, 2006 SD 43, ¶19, 714 NW2d 91, 98

(citation omitted).

Video tape of Wesley Running

[¶26.] When considering evidence proffered for admission under the residual

hearsay exception, SDCL 19-16-35, “[t]he trial judge has both the obligation and the

‘considerable discretion’ to determine whether ‘hearsay statements contain the

necessary circumstantial guarantees of trustworthiness’ to be admissible under this

rule.” State v. Engesser, 2003 SD 47, ¶38, 661 NW2d 739, 751 (noting that “[t]he

preliminary question of trustworthiness, underlying the admissibility of ‘catchall’

hearsay statements, is a question for the court, rather than a question of weight for

the jury”). The proponent of the evidence bears the “burden of establishing the

trustworthiness requirement in [SDCL 19-16-35].” Id. ¶39, 661 NW2d at 752

(citation omitted).

[¶27.] In Engesser, we set forth several factors for a trial court to consider in

assessing trustworthiness of hearsay offered under the residual hearsay rule, these

include:

(1) the character of the witness for truthfulness and honesty and
the availability of evidence on that question; (2) whether the
testimony was given voluntarily, under oath, subject to cross-
examination and a penalty for perjury; (3) the relationship of the
witness to the parties and any motivation the witness had for
making the statement; (4) the extent to which the witness’s
statement reflects personal knowledge; (5) whether the witness
ever recanted the statement; (6) the existence of corroborating
evidence; and (7) the reasons for the unavailability of the
witness.

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Id. ¶40, 661 NW2d at 752 (citations omitted). Although these factors are neither

exhaustive nor mandatory, they provide guidance for an otherwise fact specific

inquiry. Id.

[¶28.] Although Running was subpoenaed and other measures were taken to

procure his testimony at trial, Running refused to attend. Therefore, as a

substitute for his testimony, Cottier attempted to introduce the entire video taped

interview of Running. The video tape portrayed Running being interviewed by a

law enforcement officer the morning that Red Star’s body was discovered. Cottier

alleged that the video had “circumstantial guarantees of trustworthiness.” See

SDCL 19-16-35. The trial court denied admission of the entire video but permitted

portions of the video to show Running’s physical condition at the time of the

interview. Ultimately, Running’s statement that he argued with Red Star was not

admitted because the trial court found that it lacked circumstantial guarantees of

trustworthiness equivalent to those found in SDCL §§ 19-16-30 through 19-16-34.

See SDCL 19-16-35.

[¶29.] At the time of the interview, Running was housed at a twenty-four

hour detoxification facility. The night before the interview Running was picked up

by law enforcement because he was too intoxicated to walk. Running was not under

oath at the time, subject to cross-examination or subject to penalties of perjury.

Based on these facts, the trial court did not abuse its discretion in determining that

the videotaped interview lacked circumstantial guarantees of trustworthiness.

Therefore, the trial court did not err in excluding portions of the video.

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[¶30.] Moreover, even if the trial court erred in not permitting the viewing of

the entire video, the error did not prejudice Cottier. See Krebs, 2006 SD 43, ¶19,

714 NW2d at 98. Although the video shows Running discussing his shoulder injury

as well as talking about a fight with someone, he does not implicate Red Star as the

person he fought or even that a fight caused his shoulder injury. Cottier’s purpose

for wanting the entire video tape shown to the jury was to establish Cottier’s

reasonable fear of Red Star. Even without the Running video, Cottier was able to

present evidence of Red Star’s propensity for aggression through other witnesses.

Scott Mertz, one of Red Star’s acquaintances, testified that Red Star had a

reputation for aggression and violence. Jerry Charger, another of Red Star’s

acquaintances, testified that Red Star was a mean drunk and a bully. Randy

Deraad, the manager of the County Detoxification Center, testified that Red Star

was unpredictable when intoxicated. And, finally, Cottier himself testified about

his fear of Red Star, because of his reputation and propensity for violence. Even if

the trial court erred in failing to admit the video, “the error was harmless as the

evidence was cumulative of other evidence presented independently at trial.” State

v. Davi, 504 NW2d 844, 855 (SD 1993).

Prison record of Red Star

[¶31.] Cottier contends the trial court violated his due process right by

forbidding discussion of Red Star’s prison record. Packed, 2007 SD 75, ¶27, 736

NW2d at 860 (“Those denied the ability to respond to the prosecution’s case against

them are effectively deprived of a ‘fundamental constitutional right to a fair

opportunity to present a defense.’”) (citations omitted). According to Cottier, the

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prison records would have “shown the aggressive and threatening nature of [Red

Star], and the reasonableness of [Cottier’s] response to [Red Star’s] aggression.”

When the trial court denied admission of this evidence, Cottier claims to have lost

the opportunity to “present a complete defense.” See Packed, 2007 SD 75, ¶27, 736

NW2d at 860 (citations omitted). Cottier offered the evidence pursuant to SDCL 19-

12-4(2) 7 (Rule 404(a)) and SDCL 19-12-5 8 (Rule 404(b)).

[¶32.] SDCL 19-12-5 (Rule 404(b)) allows admission of specific act(s) “for

purposes other than to show conduct in conformity with character.” 2 Weinstein’s

Federal Evidence § 404.12[3] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed

2007) (discussing Rule 404(b)); SDCL 19-12-5 (Rule 404(b)). Here, Cottier offered

the prison record to corroborate his “story of how [Red Star] attacked [Cottier]”

because it demonstrated how “[Red Star] keeps coming and keeps coming.” He

7. SDCL 19-12-4 (Rule 404(a)) provides:
Evidence of a person’s character or a trait of his character is not
admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion, except:
(1) Evidence of a pertinent trait of his character offered by an
accused, or by the prosecution to rebut the same;
(2) Evidence of a pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to rebut the
same, or evidence of a character trait of peacefulness of the
victim offered by the prosecution in a homicide case to rebut
evidence that the victim was the first aggressor;
(3) Evidence of the character of a witness, as provided in §§ 19-
14-8 to 19-14-16, inclusive.

8. SDCL 19-12-5 (Rule 404(b)) provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.

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claimed the evidence would have shown “[Red Star’s] tendency to violence” and

“[Cottier’s] reasonableness of fear.” Essentially, Cottier attempted to argue Red

Star’s actions on the night of the attack conformed to previous specific behavior.

This purpose is expressly prohibited under SDCL 19-12-5 (Rule 404(b)) (stating

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith”).

[¶33.] SDCL 19-12-4(2) (Rule 404(a)) permits evidence of a victim’s violent

propensities through reputation and opinion evidence. “[T]he purpose of

introducing victim character evidence is to show that the victim had a propensity

for violence and thus is more likely to have been using unlawful force at the time of

the crime.” 2 Weinstein’s Federal Evidence § 404.11[3][a] (Joseph M. McLaughlin,

ed., Matthew Bender 2d ed 2007). “[I]f it is established that the accused knew of

the victim’s violent character, evidence of the victim’s character may be offered not

only to show that the victim acted in conformity with that character, but also to

establish the accused’s justifiable apprehension and the reasonableness of his or her

defensive measures.” Id. However, evidence of the victim’s specific acts, like the

prison records of Red Star or discussion of specific incidents of violence, are not

admissible to prove the victim acted in conformity therewith. Id.; SDCL 19-12-5; see

also State v. Knecht, 1997 SD 53, ¶15, 563 NW2d 413, 419 (quoting State v.

Latham, 519 NW2d 68, 71 (SD 1994)). Nonetheless, a victim’s specific acts may be

admissible to demonstrate a defendant’s state of mind, but only if the acts were

known to the defendant at the time of the offense. Weinstein’s, supra at §§

404.11[3][a], 405.05[4] (noting that although specific acts of violence may not be

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used to prove the victim’s violent propensities, “specific acts . . . known to the

defendant at the time of the offense may be admissible to prove the defendant’s

state of mind”); see also Knecht, 1997 SD 53, ¶15, 563 NW2d at 419 (quoting

Latham, 519 NW2d at 71 (citation omitted) (noting that specific instances of the

victim’s violent conduct are relevant only if “known to [defendant] at the time of the

incident”)). Cottier failed to establish that he was aware of these specific acts at the

time of the offense.

[¶34.] Cottier has failed to show that the trial court abused its discretion

when it prohibited the admission of Red Star’s prison record.

[¶35.] We affirm on all issues.

[¶36.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

ZINTER, Justices, concur.

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