#27703-a-LSW
2017 S.D. 47
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DIW BOL KIIR, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE JOHN R. PEKAS
and
THE HONORABLE SUSAN M. SABERS
Judges
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MARTY J. JACKLEY
Attorney General
CULLEN P. MCNEECE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
RYAN KOLBECK of
Waltner, Kolbeck &
Scharffenberg, LLP
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON FEBRUARY 13, 2017
OPINION FILED 08/02/17
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WILBUR, Retired Justice
[¶1.] A jury found defendant guilty of eight offenses. Defendant appeals the
circuit court’s admission of res gestae evidence, claiming the evidence violated his
Sixth Amendment right of confrontation. Defendant also challenges the sufficiency
of the evidence for three offenses. We affirm.
Background
[¶2.] Officer Chase Vanderhule received a call from dispatch at
approximately 8:15 p.m. on May 15, 2015, to respond to a report of an aggravated
assault with a firearm at an apartment complex in Sioux Falls, South Dakota.
Officer Vanderhule arrived at the apartment complex and made contact with the
reporting witnesses. The witnesses spoke to Officer Vanderhule with the help of a
Spanish interpreter. The witnesses relayed that a silver, gray, or brown Chevy
Impala or Malibu arrived near the area with multiple African American males and
one female inside the vehicle. The witnesses claimed that one person from the
vehicle tried to sell them drugs. They further claimed that when they refused, one
of the African American males pointed a firearm at them. The witnesses reported
that this male was wearing a red hat and white t-shirt and was approximately 25 to
30 years old. The witnesses also described the gun—it had a black grip, a silver top,
and a slide that racks back. The witnesses told Officer Vanderhule that the vehicle
and its occupants left the area after the incident.
[¶3.] While Officer Vanderhule was speaking with the witnesses and
reviewing the surveillance footage from the apartment complex, he learned that a
male fitting the witnesses’ description of the alleged perpetrator was in the area.
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Officer Vanderhule immediately called for assistance. He left the witnesses and
proceeded to the area where the male was reportedly located. Officer Vanderhule
later testified that as he rounded a corner at the apartment complex, he saw a
person, later identified as Diw Bol Kiir, who fit the description provided by the
witnesses—red hat, white t-shirt, African American male, 25 to 30 years old. The
area, according to Officer Vanderhule, had one light and was poorly lit. Officer
Vanderhule noticed that Kiir had a cigarette in his hand.
[¶4.] Officer Vanderhule decided to make contact with Kiir. He attempted
to engage Kiir in nonconfrontational conversation. Officer Vanderhule testified that
he asked Kiir his name. Kiir gave a false name. The officer also asked Kiir what
Kiir was doing at the apartment complex. Officer Vanderhule testified that he
asked the question many times before Kiir answered. Kiir claimed that he had
arrived to drop off beer to his friend. Officer Vanderhule told Kiir that he was at
the complex to investigate an incident and that he wanted to discuss the incident
with Kiir. According to Officer Vanderhule, Kiir immediately responded, “No, I
wasn’t here. No, I wasn’t here.”
[¶5.] Officer Vanderhule testified that he had asked Kiir to come with him
to the parking lot to talk about why Officer Vanderhule was at the apartment
complex. As Kiir was stepping off the stairs onto the sidewalk area, Officer
Vanderhule asked Kiir if he had any weapons on him. Kiir responded, “What for?”
Officer Vanderhule testified that he asked Kiir the same question again. Kiir
responded, “No, I don’t have any weapons on me.” Officer Vanderhule informed Kiir
that he wanted to pat Kiir down to see if he had any weapons. Officer Vanderhule
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took a step toward Kiir and according to the officer, Kiir threw his cigarette on the
ground, clenched his fists, “and started bouncing up and down as though he were a
boxer in a boxing ring about to fight somebody.” Officer Vanderhule testified that
Kiir said, “No, you are not going to touch me. Do not touch me. Do not come over
here and touch me.” The officer explained to the jury that he tried to remain calm,
keep the peace, and express his desire to Kiir that nothing happen.
[¶6.] When Kiir did not alter his actions, Officer Vanderhule drew his taser
and ordered Kiir to get on the ground. According to Officer Vanderhule, Kiir turned
and ran. The officer deployed his taser and the two probes attached to Kiir, causing
him to fall onto his stomach. Officer Vanderhule testified that he told Kiir to stay
on the ground and to put his hands behind his back. Once Kiir complied, the officer
approached Kiir, placed a knee on Kiir’s back, and grabbed his handcuffs. After
Officer Vanderhule attached a handcuff to Kiir’s left hand, Kiir began to resist. Kiir
struggled and freed his right hand. According to Officer Vanderhule, Kiir tried to
grab the front part of Kiir’s pants with his right hand and fought against Officer
Vanderhule’s attempt to restrain him. Officer Vanderhule testified that the force of
Kiir’s resistance injured the officer’s left hand. Officer Vanderhule activated the
taser again when Kiir attempted to bite the officer.
[¶7.] After being tased, Kiir told Officer Vanderhule he would comply. But
according to the officer, Kiir did not. Kiir rotated his body and reached toward his
waistband. According to Officer Vanderhule, he tased Kiir three or four more times,
but Kiir continued to resist. At this point during the struggle, Officer Vanderhule
heard a noise come from around the corner. He looked up and noticed Officer Matt
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Dunn. Officer Vanderhule testified that shortly thereafter he placed Kiir’s right
hand in the handcuff. According to Officer Vanderhule, his struggle to restrain Kiir
spanned approximately two minutes. Once Kiir was fully handcuffed, Officer Dunn
assisted Officer Vanderhule in lifting Kiir to his feet and moving him approximately
five or six feet from where the struggle occurred.
[¶8.] After placing Kiir under arrest, Officer Dunn shined his flashlight in
the area of the struggle. He observed a gun. The gun appeared to be consistent
with that described by the witnesses reporting the alleged aggravated assault.
Officer Vanderhule also noticed a vehicle in the parking lot, which was not there
when the officer first arrived, but which matched the one described by the
witnesses. The officers had the vehicle towed from the scene. The next day, law
enforcement obtained consent from the owner of the vehicle to search it. Officer
Patrick Mertes searched the vehicle and found a dark-colored backpack behind the
driver’s seat. Inside the bag were two jeweler’s bags and two scales wrapped in
men’s underwear. Law enforcement later confirmed the presence of
methamphetamine in the jeweler’s bags. A bus ticket listing Kiir’s name was also
in the backpack.
[¶9.] On May 28, 2015, a grand jury issued an eleven-count indictment
against Kiir. The indictment alleged that Kiir committed the following offenses:
Count 1—aggravated assault against law enforcement; Counts 2-4—alternative
counts of simple assault against law enforcement; Count 5—possession of a
controlled substance; Count 6—possession of a controlled substance while armed;
Count 7—simple assault against law enforcement while armed; Count 8—
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possession of a firearm with an altered serial number; Count 9—possession of a
firearm by a person with one prior drug conviction; Count 10—grand theft; Count
11—resisting arrest. The State also filed a part II information alleging Kiir to be a
habitual offender.
[¶10.] Kiir filed a motion in limine to “suppress any out-of-court statements
not subject to cross-examination” and to “suppress any statements or references
regarding allegations of attempted narcotics sales and intimidation with a
weapon[.]” In a pretrial hearing, the circuit court ruled that Officer Vanderhule
may testify about the statements made to him in the initial report. The court held
that the statements provided context and were res gestae evidence. However, the
court suppressed any statement by Officer Vanderhule that one of the reporting
witnesses told the officer that the witness observed the alleged perpetrator return to
the apartment complex. The court held that the out-of-court identification of the
defendant required the identifying witness’s testimony.
[¶11.] At the conclusion of a two-day jury trial in October 2015, Kiir moved
for a judgment of acquittal on Counts 1 and 9. The court denied the motion. The
jury returned a guilty verdict on Counts 2 and 3 and Counts 5 through 10. The
State had dismissed Count 11 prior to voir dire. Kiir admitted to the allegations in
the part II information. The court sentenced Kiir to two years on Count 2, three
years on Counts 8 and 10, four years on Counts 5 and 9, and ten years with three
suspended on Count 6. The court did not impose a sentence for Count 7. The court
ordered the sentences for Counts 2, 5, 8, 9, and 10 to run concurrent with one
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another while the sentence for Count 6 was to run consecutively to the concurrent
sentences as mandated by statute. See SDCL 22-14-12.
[¶12.] Kiir appeals, asserting the following issues:
1. Whether the testimony and argument regarding the initial
report was proper res gestae evidence.
2. Whether the evidence was sufficient to support the conviction
of possession of a controlled substance while armed with a
firearm.
3. Whether the evidence was sufficient to support the conviction
of simple assault on a law enforcement officer while armed
with a firearm.
4. Whether the evidence was sufficient to support the conviction
of possession of a controlled substance.
Analysis
1. Res gestae evidence
[¶13.] Kiir asserts that the State transformed the contextual statements
made by the witness reporters to Officer Vanderhule into inadmissible hearsay in
violation of Kiir’s Sixth Amendment rights. The witnesses did not testify, and
according to Kiir, the State used the witnesses’ hearsay statements to prove the
truth of the matters asserted. Kiir admits that certain statements by the witnesses
were admissible to explain Officer Vanderhule’s actions. But he argues that the
State went too far when the State used the witnesses’ statements to prove that Kiir
was armed with a firearm prior to his interaction with Officer Vanderhule and was
associated with the vehicle containing the backpack with methamphetamine.
[¶14.] We review the circuit court’s evidentiary rulings for an abuse of
discretion. State v. Goodroad, 1997 S.D. 46, ¶ 9, 563 N.W.2d 126, 129. The circuit
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court denied Kiir’s request to suppress witness statements made to Officer
Vanderhule, finding that those statements were res gestae evidence explaining
Officer Vanderhule’s thoughts and actions. We have said that “the Confrontation
Clause ‘does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.’” State v. Johnson, 2009 S.D. 67, ¶ 23,
771 N.W.2d 360, 269 (quoting Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004)). Therefore, “[w]hen out-of-court statements are not
offered to prove the truth of the matter asserted, the Confrontation Clause is
satisfied if the defendant had the opportunity to cross-examine the person repeating
the out-of-court statement.” Id. We have also said that the res gestae rule “permits
the admission of evidence that is ‘so blended or connected’ in that it ‘explains the
circumstances; or tends logically to prove any element of the crime charged.’” State
v. Wright, 2009 S.D. 51, ¶ 55, 768 N.W.2d 512, 531 (quoting State v. Owen, 2007
S.D. 21, ¶ 15, 729 N.W.2d 356, 363). The evidence is admissible even though it
sometimes implicates the defendant in other acts. See United States v. LaDue, 561
F.3d 855, 858 (8th Cir. 2009).
[¶15.] Here, the circuit court admitted out-of-court statements through
Officer Vanderhule’s testimony. The officer repeated the witnesses’ statements
made to him when testifying about his reason for arriving at the apartment complex
and his reason for approaching Kiir. Kiir had an opportunity to cross-examine
Officer Vanderhule about the statements made to him. From our review of Officer
Vanderhule’s testimony, the witnesses’ statements were inextricably intertwined
with the charged crime so as to constitute res gestae evidence and were not offered
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to prove the truth of the matter asserted. The statements explained why Officer
Vanderhule was at the apartment complex and why the officer engaged Kiir in
conversation. The witnesses’ statements also gave context to why Officer
Vanderhule exercised heightened caution during his interaction with Kiir. The
witnesses’ statements also informed the jury why Officer Vanderhule believed the
vehicle in the parking lot might be associated with Kiir. See, e.g., State v. Stark,
2011 S.D. 46, ¶ 26, 802 N.W.2d 165, 173 (information about an informant’s tip was
necessary for the jury to hear to give context in the case and explain why defendant
was being followed).
[¶16.] Nonetheless, Kiir claims that the circumstances of this case are akin to
those in State v. Johnson, 2009 S.D. 67, 771 N.W.2d 360. In Johnson, we held that,
although an officer’s testimony about statements made to him properly gave context
to the circumstances, the State’s argument to the jury violated the defendant’s
Sixth Amendment right of confrontation. Id. ¶ 24. The State’s argument converted
the res gestae evidence to hearsay statements used to prove the truth of the matter
asserted—that the defendant sold the drugs because the declarant witness told the
detective that the defendant sold the drugs. Id. Here, however, the prosecutor did
not use the witnesses’ statements to prove the truth of the matters asserted. The
prosecutor did not argue that Kiir in fact pointed a gun at the witnesses when they
refused to buy the drugs offered. The prosecutor also did not argue that Kiir was in
fact an occupant in the vehicle. Instead, the prosecutor’s opening and closing
remarks aligned with Officer Vanderhule’s testimony giving context to the
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circumstances related to the crimes charged. The circuit court did not abuse its
discretion when it admitted the witnesses’ statements as res gestae evidence.
2. Conviction of possession of a controlled substance while
armed with a firearm.
[¶17.] Kiir argues that there is insufficient evidence to prove that he was
armed while possessing a controlled substance. He emphasizes that the gun was
found near the area he and Officer Vanderhule struggled but that the drugs were
found in a backpack in a vehicle in the parking lot away from any association with
Kiir. He argues that no evidence, circumstantial or otherwise, establishes that he
did anything other than merely possess a gun while also being in possession of a
controlled substance. Kiir did not move for a judgment of acquittal on this charge
at the conclusion of the case. He, however, asks this Court to invoke plain error
review. He claims that counsel’s failure to make “an argument that could have
prevented the allegation from going to the jury for deliberation is per se prejudicial
and proper for plain error consideration.”
[¶18.] “Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of a court.” SDCL 23A-44-15 (Rule
52(b)). To establish plain error, Kiir must show “(1) error, (2) that is plain, (3)
affecting substantial rights; and only then may this Court exercise its discretion to
notice the error if (4) it ‘seriously affects the fairness, integrity, or public reputation
of judicial proceedings.’” State v. Buchhold, 2007 S.D. 15, ¶ 22, 727 N.W.2d 816,
822 (quoting State v. Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d 439, 443). “We invoke
our discretion under the plain error rule cautiously and only in ‘exceptional
circumstances.’” Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d at 443 (quoting State v.
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Davi, 504 N.W.2d 844, 855 (S.D. 1983)). Also, as the party asserting the error, Kiir
bears the burden of proving that the error was prejudicial. Id. ¶ 7.
[¶19.] In his brief to this Court, Kiir specifically asserts that error occurred
and that prejudice exists because the evidence is wholly insufficient to support the
verdict. But he also indirectly argues that prejudicial error occurred because his
trial counsel did not move for a judgment of acquittal on this charge, which would
have preserved Kiir’s argument against the sufficiency of the evidence on appeal.
We rarely consider a claim of ineffective assistance of counsel on direct appeal.
State v. Thomas, 2011 S.D. 15, ¶ 20, 796 N.W.2d 706, 713. This is because on direct
appeal, trial counsel is unable to explain or defend actions and strategies and give a
more complete picture of what occurred for our review. Id. ¶ 23. However, we have
recognized that this Court “may consider unpreserved issues in certain cases
involving claims of ineffective assistance of counsel.” Id. ¶ 20. We do so “only when
trial counsel was ‘so ineffective and counsel’s representation so casual as to
represent a manifest usurpation of the defendant’s constitutional rights.’” Id. ¶ 23
(quoting State v. Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d 250, 256).
[¶20.] To determine whether we should consider Kiir’s claim that counsel was
ineffective, we examine his conviction for possession of a controlled substance while
armed with a firearm. In State v. Chavez, we recognized that SDCL 22-14-12 is
“designed to discourage firearm use and decrease the probability of serious bodily
harm to felony victims.” 2002 S.D. 84, ¶ 13, 649 N.W.2d 586, 592 (quoting State v.
Simons, 313 N.W.2d 465, 467 (S.D. 1981)). “It is a gun control statute that
mandates additional punishment if a firearm is used in the perpetration of the
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predicate felony.” Simons, 313 N.W.2d at 467 (emphasis added). In our review of
the record, the evidence does not support that Kiir used or attempted to use a
firearm in the commission of his offense of possessing a controlled substance. No
officer testified that he or she observed Kiir use or attempt to use a gun while Kiir
possessed the drugs. Also, no other testifying witnesses claimed to have observed
Kiir use or attempt to use a gun while in possession of the drugs. See State v. Cook,
319 N.W.2d 809, 813 (S.D. 1982) (“The purpose of the statute . . . would not be
furthered by applying this statute to the situation before us.”).
[¶21.] Because the evidence is lacking to support the jury’s guilty verdict on
the charge of possession of a controlled substance while armed with a firearm, had
Kiir’s trial counsel moved for a judgment of acquittal, the circuit court should have
granted it. This suggests, then, that trial counsel erred. But before we will review
Kiir’s claim of ineffective counsel on direct appeal, Kiir must establish that “trial
counsel was ‘so ineffective and counsel’s representation so casual’” that counsel’s
representation constituted “a manifest usurpation of the defendant’s constitutional
rights.” Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d at 714 (quoting Arabie, 2003 S.D.
57, ¶ 20, 663 N.W.2d at 256).
[¶22.] We consistently state that “[t]he preferable means to consider
incompetent counsel claims is through habeas corpus proceedings.” State v.
Petersen, 515 N.W.2d 687, 688 (S.D. 1994) (quoting State v. Aliberti, 401 N.W.2d
729, 732 (S.D. 1987)). Indeed, it is through habeas that this Court may obtain a
more complete picture of what occurred for review. Thomas, 2011 S.D. 15, ¶ 23,
796 N.W.2d at 714. On this record, we are unable to obtain a complete picture to
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examine counsel’s reason for not moving for a judgment of acquittal. We, therefore,
decline to consider Kiir’s claim of ineffective assistance of counsel claim on direct
appeal.
[¶23.] We also decline to invoke our plain error review under the
circumstances. The State indicted Kiir on two counts of violating SDCL 22-14-12—
committing or attempting to commit a felony armed with a firearm. The jury found
Kiir guilty on both counts, and as we conclude in the next issue, the evidence is
sufficient to support the jury’s verdict for Count 7. At the sentencing hearing,
however, the court indicated that it would sentence Kiir on only one of the offenses
under SDCL 22-14-12. The court said, “And between Counsel, is there any rhyme
or reason whether I pick . . . Count VI or VII among the firearms?” Both counsel for
the State and for Kiir responded that neither believed it made a difference. The
court then sentenced Kiir for Count 6 and imposed no sentence for the jury’s guilty
verdict for Count 7. To the court, it did not make a difference on which conviction it
sentenced Kiir—it intended to sentence Kiir to 10 years in prison. This does not
mean “we simply substitute the sentence imposed for Count 6 for a sentence on
Count 7” or that we “engage in the sentencing function, which is the exclusive
province of the trial court.” See Dissent ¶ 34. On the contrary, the question is
whether this case presents exceptional circumstances warranting this Court’s
discretion under plain error. See Henjum, 1996 S.D. 7, ¶ 14, 542 N.W.2d at 763.
Because the evidence supports that Kiir violated SDCL 22-14-12, and because Kiir
received one sentence for his crime under that statute, we decline to exercise our
discretion under plain error. See id.
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3. Conviction of simple assault on a law enforcement officer
while armed with a firearm.
[¶24.] Kiir similarly asserts that the evidence is insufficient to support the
conviction for assaulting Officer Vanderhule while armed with a firearm. Kiir did
not move for a judgment of acquittal. He again asks us to invoke plain error review.
This we decline to do. There is no evidence of an error. See Buchhold, 2007 S.D. 15,
¶ 22, 727 N.W.2d at 822 (plain error review requires an error that is plain). Kiir
does not challenge the jury’s conclusion that he committed a simple assault against
Officer Vanderhule. And, when viewing the evidence in a light most favorable to
the jury’s verdict, the evidence at trial supports that Kiir attempted to use a firearm
against Officer Vanderhule’s efforts to restrain Kiir. State v. Pellegrino, 1998 S.D.
39, ¶ 20, 577 N.W.2d 590, 598 (we “accept that evidence, and the most favorable
inferences that can be fairly drawn therefrom, which will support the verdict”
(quoting State v. Hart, 1996 S.D. 17, ¶ 8, 544 N.W.2d 206, 208)).
[¶25.] Nonetheless, the dissent suggests that we remand Count 7 to the
circuit court so that it may impose a sentence. On the contrary, whether this Court
can remand Count 7 to the circuit court for sentencing is not before us. Even so,
State v. Well, cited by the dissent, does not support remand in this case. 2000 S.D.
156, ¶ 25, 620 N.W.2d 192, 197. In Well, the defendant preserved his claimed error
by moving for a judgment of acquittal, and we concluded that the circuit court
should have granted the motion. We reversed the conviction for which the circuit
court had imposed no sentence and remanded for a possible reduction in sentence.
Here, on the other hand, Kiir did not preserve his error for our review, we are
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affirming Kiir’s conviction on Count 7, and Kiir did not request that he receive a
sentence for Count 7 had we reversed his conviction on Count 6.
4. Conviction of possession of a controlled substance.
[¶26.] Kiir claims there is insufficient evidence to support that he possessed a
controlled substance because the backpack containing methamphetamine was not
in Kiir’s possession, and the State offered no evidence that Kiir had knowledge of
the presence of the drugs. Kiir contends that the only way to link him to the drugs
would be to link him to the vehicle. He then argues that the State presented no
evidence associating him with the vehicle except the res gestae evidence from the
witness reporters.
[¶27.] Kiir asserts that we are to review his argument de novo. But Kiir did
not move for a judgment of acquittal on this charge. Therefore, Kiir must establish
that he is entitled to plain error review. From our review, there is no error. The
evidence, viewed in the light most favorable to the prosecution, supports that a
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979). We give “circumstantial and direct evidence equal weight,”
and recognize that “circumstantial evidence can be more reliable than direct
evidence.” State v. Laplante, 2002 S.D. 95, ¶ 32, 650 N.W.2d 305, 313. Here, the
State presented evidence of incriminating circumstances from which the jury could
infer Kiir’s knowledge of the presence of drugs in the backpack and the ability to
control them. Because this evidence and the reasonable inferences to be drawn
from the evidence sustain a rational theory of guilt, Kiir has failed to establish plain
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error. See State v. Guthrie, 2001 S.D. 61, ¶ 47, 627 N.W.2d 401, 420 (discussing the
standard on a claim of insufficient evidence).
[¶28.] Affirmed.
[¶29.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
concur.
[¶30.] KERN, Justice, concurs in part and dissents in part.
KERN, Justice (concurring in part and dissenting in part).
[¶31.] I concur in Issues 1, 3, and 4, but respectfully dissent on Issue 2. I
would notice the plain error and remand to the trial court to vacate the conviction
for Count 6 and sentence Kiir for the conviction on Count 7. I would do so for the
sake of judicial economy and because sustaining a conviction that is not supported
by the evidence affects the integrity of the justice system.
[¶32.] Kiir was prejudiced by his counsel’s failure to move for a judgment of
acquittal on Count 6. “When a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Strickland v. Washington,
466 U.S. 668, 695, 104 S. Ct. 2052, 2068-69, 80 L. Ed. 2d 674 (1984); see also State v.
Thomas, 2011 S.D. 15, ¶ 28, 796 N.W.2d 706, 715. It is undisputed that there was
insufficient evidence to support the conviction on Count 6. And, absent counsel’s
error to move for a judgment of acquittal, no reasonable factfinder could have found
Kiir guilty on Count 6. Because the evidence is wholly lacking to support the jury’s
guilty verdict on Count 6, we need not wait for trial counsel to explain her actions or
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strategies in not moving for a judgment of acquittal. See Thomas, 2011 S.D. 15, ¶¶
23-25, 796 N.W.2d at 714. In fact, trial counsel specifically requested a judgment of
acquittal on other counts, and there is no conceivable strategic benefit in failing to
request a judgment of acquittal on this count. Kiir has met the high burden of
establishing on direct appeal that his trial counsel was ineffective.
[¶33.] Further, the circumstances of this case constitute plain error. The
Eighth Circuit Court of Appeals has explained that “where it clearly appears in a
criminal case that a defendant has been convicted of an offense which the evidence
fails to show was committed, the error of submitting the case to the jury for
determination is so plain and vital that this court is at liberty to and will reverse
even in the absence of a proper motion and exception, not because the defendant
has a right to demand a reversal, but solely in the public interest and to guard
against injustice.” Cox v. United States, 96 F.2d 41, 43 (8th Cir. 1938). I agree with
the Eighth Circuit’s reasoning and would notice plain error in this case.
[¶34.] The majority contends that there was no plain error in this case
because the trial court could have sentenced Kiir on either Count 6 or Count 7.
Kiir’s convictions on Counts 6 and 7 were for violating SDCL 22-14-12. That statute
provides:
Any person who commits or attempts to commit any felony while
armed with a firearm, including a machine gun or short
shotgun, is guilty of a Class 2 felony for the first conviction. A
second or subsequent conviction is a Class 1 felony. The
sentence imposed for a first conviction under this section shall
carry a minimum sentence of imprisonment in the state
penitentiary of five years. In case of a second or subsequent
conviction under this section such person shall be sentenced to a
minimum imprisonment of ten years in the penitentiary.
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Any sentence imposed under this section shall be consecutive to
any other sentences imposed for a violation of the principal
felony. The court may not place on probation, suspend the
execution of the sentence, or suspend the imposition of the
sentence of any person convicted of a violation of this section.
Although the trial court only sentenced Kiir on Count 6, it sentenced him to ten
years imprisonment with the sentence to run consecutively to Kiir’s other
sentences. 1 The majority proposes by implication that we simply substitute the
sentence imposed for Count 6 for a sentence on Count 7. The majority’s approach is
problematic because this Court does not engage in the sentencing function, which is
the exclusive province of the trial court. Moreover, it is unclear what effect the
erroneous conviction on Count 6 may have had on the trial court’s sentencing
decision.
[¶35.] In State v. Well, 2000 S.D. 156, 620 N.W.2d 192, the defendant was
convicted of both aggravated assault and abuse or cruelty to a minor. The trial
court sentenced him on the abuse conviction but did not impose a sentence for the
aggravated assault conviction. Id. ¶ 9, 620 N.W.2d at 194. On appeal, this Court
vacated the conviction for aggravated assault. Id. ¶ 25, 620 N.W.2d at 197. We
remanded to the trial court to determine whether “the improper conviction for
aggravated assault had any effect on the imposed sentence,” and if it did, to “make
an appropriate reduction in said sentence.” Id. Likewise, in this case, I would
1. The court suspended three years of the sentence.
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remand to the trial court to determine whether the erroneous conviction on Count 6
would have any effect on a sentence imposed for Count 7. 2
[¶36.] Kiir has made the rare showing on direct appeal of both ineffective
assistance of counsel and plain error. However, just as it is untenable that Kiir
should remain incarcerated on a conviction that was not supported by the evidence,
it is equally untenable that Kiir should go unpunished for the crime that he was
rightfully convicted of but no sentence was imposed. I would notice the plain error
and remand to the trial court to vacate the conviction for Count 6 and sentence Kiir
for the conviction on Count 7. Kiir’s continued incarceration on an erroneous and
prejudicial conviction and sentence while he applies for inevitable post-conviction
relief “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” State v. Hayes, 2014 S.D. 72, ¶ 25, 855 N.W.2d 668, 675 (setting forth
the required showing for plain error).
2. The Double Jeopardy Clause is not implicated by remanding this case for
sentencing on Count 7. The Double Jeopardy Clause “is written in terms of
potential or risk of trial and conviction, not punishment.” Schiro v. Farley,
510 U.S. 222, 231, 114 S. Ct. 783, 790, 127 L. Ed. 2d 47 (1994) (quoting Price
v. Georgia, 398 U.S. 323, 329, 90 S. Ct. 1757, 1761, 26 L. Ed. 2d 300 (1970)).
“The pronouncement of sentence simply does not ‘have the qualities of
constitutional finality that attend an acquittal.’” Monge v. California, 524
U.S. 721, 729, 118 S. Ct. 2246, 2251, 141 L. Ed. 2d 615 (1998) (quoting United
States v. DiFrancesco, 449 U.S. 117, 134, 101 S. Ct. 426, 436, 66 L. Ed. 2d 328
(1980)). As such, the general rule is “that double jeopardy principles have no
application in the sentencing context.” Id. at 730.
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