State v. Tiegen

#23759-a-JKK

2008 SD 6

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

TORY TIEGEN, Defendant and Appellant.

* * * *

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

* * * *

HONORABLE JANINE M. KERN
Judge

* * * *

LAWRENCE E. LONG
Attorney General

FRANK GEAGHAN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

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

* * * *

ARGUED ON OCTOBER 3, 2007

OPINION FILED 01/16/08
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KONENKAMP, Justice

[¶1.] Defendant was convicted of kidnapping Troy Klug. Klug is believed to

be dead, but his body has never been found. On appeal, defendant asserts trial

court error in: (1) denial of his right to a speedy trial; (2) admission in evidence of

multiple out-of-court statements by a co-conspirator; (3) admission of his

incriminating jail-house messages written to a co-defendant, who defendant alleges

acted as an agent for law enforcement investigators; and (4) his sentence of 100

years imprisonment after the court made statements suggesting that defendant

probably killed Klug. We affirm on all issues.

Background

[¶2.] On July 12, 2004, Troy Klug and his girlfriend’s brother, Robert, went

to Cynthia Kindall’s home to obtain drugs. Klug called his girlfriend, Duanna

Beebe, multiple times, but she would not answer because she was upset at him for

buying drugs. Later that day, Klug sent Beebe a text message asking if her brother,

Robert, was with her. She responded that he was not. That was the last

communication she had with Klug. As the day went on, Klug never came home, and

she began to worry. She called his cellular phone multiple times and left messages.

After 7:00 p.m., however, Klug’s voice mailbox was full and she could no longer

leave a message.

[¶3.] Beebe later recounted in court that at 9:30 p.m. Cynthia Kindall and

Tory Tiegen (defendant) showed up at her and Klug’s house. They came upstairs to

her bedroom. She asked if they knew where Klug was. Kindall replied that Klug

had shown up at her house, but she told him to leave. At some point, defendant and

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Kindall, while in Beebe’s bedroom, rummaged through Klug’s possessions.

Defendant took a bottle of Klug’s cologne and said, “Well, if it’s Troy’s, it’s ours

now.” Both Kindall and defendant made similar remarks about Klug’s things.

Beebe pressed the two about Klug’s whereabouts. Kindall said that Klug was no

longer a problem, and remarked, “Isn’t that right, Tory” to which defendant

responded, “Yes.” According to Beebe, they were smirking when they said this.

[¶4.] The next day, July 13, Beebe had a friend staying with her. Just after

midnight, Kindall and defendant showed up at her home again. They entered

through her living room window and came running up the stairs. Kindall went into

Beebe’s bedroom and kept asking Beebe what was wrong with her. Beebe was in

bed recuperating from an operation. Her incision had become infected. Beebe’s

friend asked them what happened to Klug. Kindall responded that she did not

know where he was. Then, she said to Beebe, “Honey, I need you to come with me.

I got to go away for a while and I need you to go with me.” Beebe refused to go.

During this exchange defendant was pacing back and forth and finally said that

they did not have time and needed to go. Beebe told them she had filed a missing

persons report on Klug and that she was probably on twenty-four-hour surveillance.

At that point, they left.

[¶5.] At 3:00 a.m. on July 14, 2004, Kindall and defendant showed up in

Kindall’s vehicle at Tell Cook’s home in Belle Fourche, South Dakota. According to

Cook, Kindall and defendant were ranting about people owing money and about

snitches. Klug allegedly owed Kindall $300 from previous drug deals. Defendant

had Cook come to the trunk of Kindall’s vehicle. Defendant opened the trunk,

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revealing a man inside. His hands, feet, and head were bound with duct tape. He

was face down, with his feet in the air, stripped naked except for boxer shorts.

Defendant punched him in the back and yelled, “wake up mother fucker.” The man

made muffled noises. Cook believed he was still alive. When Cook asked what

defendant was going to do, defendant said they would either “go to Denver and turn

him in or go to North Dakota and dig a hole.”

[¶6.] The next day, July 15, defendant and Kindall showed up again at

Cook’s house. Cook asked defendant what he had done with the man in the trunk.

Defendant replied that he put him in a toolbox and left him there all day. Cook

asked if he gave him water because it was hot. Defendant replied, “No, and it’s too

late for all that anyway.” Cook recalled that defendant said he had gone to the

toolbox a few times throughout the day and was beating the man. Defendant said

to Cook that he felt bones crush in his face and he thought “that’s what did him in.”

[¶7.] At 4:00 a.m. on July 17, Kindall and defendant arrived in North

Dakota at Ross Thomas’s home. Jamie Keefe saw both of them there. At 9:30 p.m.,

according to Keefe, defendant was cutting fringes on a blanket and Kindall was

doing laundry. Defendant asked Kindall if she was washing the laundry in cold

water, to which she responded, “Yes, I washed it in cold water.”

[¶8.] On July 18, Kindall and defendant were still at Thomas’s residence.

Keefe helped them clean out Kindall’s car. According to Keefe, the inside of the car

was stripped down to the metal frame. Bleach had been poured in it. Maggots were

floating in a solid layer on the bleach. Defendant told her he poured about three

gallons of bleach in the car and that the maggots were from a milk spill. Keefe

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helped defendant clean by scrubbing and using a shop vacuum to suck up the

bleach. The rags they used to clean the car were eventually taken to a fire stoke

and burned. According to Keefe, at some point, Kindall yelled at defendant that the

car should have been cleaned five days ago. Keefe recalled that defendant

attempted to clean the car’s upholstery with Febreze and Woolite. He also had

Keefe scrub the floorboards, which had a rust-colored stain.

[¶9.] Brent Gromer, a special agent for the South Dakota Division of

Criminal Investigation, was assigned to look into Klug’s disappearance. At that

time, defendant had been identified as a suspect based on Agent Gromer’s interview

with Beebe. On July 20, 2004, Agent Gromer and two other officers interviewed

Tell Cook. Cook told them of seeing defendant and Kindall at his house, but

repeatedly denied seeing anyone in a car trunk. He did admit, however, that

defendant mentioned “going back to Rapid City and snatchin some guy and . . . well

you never know I might have already done it. . . . Could be in the trunk outside. . .

.” Cook also recalled that the name “Troy” was mentioned. The officers were not

satisfied that Cook was revealing everything he knew. Agent Gromer made several

strong comments to motivate Cook to be more cooperative. On July 22, Cook was

again interviewed, but this time by two different law enforcement officers. He told

them that Klug was over at Kindall’s house and defendant was using Klug to move

things in the basement and they hit him and duct taped him. Cook was arrested on

August 6, 2004, and placed in the Pennington County jail.

[¶10.] Agent Gromer and Special Agent John Griswold interviewed defendant

in North Dakota on July 22, 2004. The next day, defendant was charged with

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kidnapping Klug. On August 4, he was indicted on one count of kidnapping and one

count of conspiracy to commit kidnapping. 1 Defendant was placed in the

Pennington County jail, in a cell adjacent to Cook’s. While they were there, Cook

had contact with defendant through a “kiting system” whereby an inmate would

have letters or notes sent from one cell to another. Cook had written defendant and

defendant wrote back. Defendant used the nickname “Chopper” when referring to

Cook. Cook gave defendant the nickname “Mad Hatter.” Cook told his lawyer

about the notes he obtained and that they contained incriminating information

about defendant. Cook and his lawyer met with law enforcement officers on

September 30, 2004. He decided to tell everything he knew, and a plea agreement

was reached. 2 Cook told the officers of seeing Klug in the trunk, recounted the

statements defendant and Kindall made, and turned over some of the notes

defendant had written.

[¶11.] After Cook made a plea agreement, Kindall and defendant remained to

be tried together. Defendant moved to sever his trial from Kindall’s. The court

granted the motion. Defendant also challenged the State’s intention to introduce

Kindall’s out-of-court statements. She was not available to testify because she was

found incompetent to stand trial. The State sought to introduce multiple

statements made by Kindall to Beebe, Keefe, and Cook. It contended that the

statements were not hearsay because they were made in furtherance of the

1. The State dismissed the conspiracy charge on May 12, 2005.
2. Cook pleaded guilty to misprision of a felony for his failure to contact law
enforcement authorities when he observed a felony taking place.

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conspiracy to kidnap Klug. The court examined each statement the State sought to

introduce and addressed whether each met the requirements of SDCL 19-16-3(5). It

ruled that some statements were admissible and some were not. The court then

took under advisement whether the statements would, nevertheless, be

inadmissible because Kindall was unavailable.

[¶12.] Defendant next challenged the State’s plan to introduce the jailhouse

“kites” defendant sent to Cook. According to defendant, Cook obtained these notes

in violation of his Sixth Amendment right to counsel because at the time Cook

obtained information from defendant, he was represented by counsel. Cook,

defendant argued, was acting as an agent of law enforcement and elicited the

information at the direction of law enforcement officers. After a hearing, where

Cook, the officers, and others testified, and certain transcripts of law enforcement

interviews were admitted, the court found the “kites” admissible. It held that Cook

was not acting as an agent for law enforcement: he wrote to defendant of his own

volition and the investigating officers were not aware of Cook’s actions until after

the fact.

[¶13.] Defendant’s trial began on June 20, 2005, 308 days after he was

arraigned, and thirty-three days short of a year from when he was arrested.

Kindall did not testify at his trial. But many of her statements, previously

determined by the court to be admissible, were admitted over defendant’s objection.

The “kites” were also admitted. Defendant was found guilty of kidnapping Klug

and sentenced to 100 years in the penitentiary. He appeals asserting the following

six issues: (1) his right to a speedy trial under the Sixth Amendment to the United

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States Constitution and Article VI, section 7 to the South Dakota Constitution was

violated; (2) his Sixth Amendment right to counsel was violated when law

enforcement used Cook to elicit information from defendant while defendant was

represented by counsel and incarcerated; (3) the court erred when it admitted co-

conspirator statements of Kindall under SDCL 19-16-3(5); (4) the court erred in

finding that a conspiracy existed because Kindall was found incompetent to stand

trial and one cannot have a conspiracy with someone that is incompetent; (5) he was

denied his right to cross examine Kindall in violation of his right to confront

witnesses; and (6) the court erred when it imposed a grossly disproportionate

sentence by considering facts not part of the kidnapping charge.

Standard of Review

[¶14.] We apply a de novo standard of review to claims of constitutional

violations. State v. Dillon, 2001 SD 97, ¶12, 632 NW2d 37, 43 (citing State v.

Stanga, 2000 SD 129, ¶8, 617 NW2d 486, 488). Decisions on motions to suppress for

violations of legal rights are also reviewed de novo. State v. Stevens, 2007 SD 54,

¶5, 734 NW2d 344, 346 (quoting State v. Hess, 2004 SD 60, ¶9, 680 NW2d 314, 319

(quoting State v. Herrmann, 2002 SD 119, ¶9, 652 NW2d 725, 728 (citations

omitted))). Findings of fact, however, are reviewed under the clearly erroneous

standard. Id. (citing State v. Tofani, 2006 SD 63, ¶24, 719 NW2d 391, 398). A

claim that a sentence is grossly disproportionate is reviewed by the standards set

out in State v. Bonner, 1998 SD 30, ¶17, 577 NW2d 575, 580.

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Analysis and Decision

1. Speedy Trial

[¶15.] Defendant contends that he was denied his right to a speedy trial

under the United States and South Dakota constitutions. He is not arguing that

our 180-day rule was violated. 3 See SDCL 23A-44-5.1. Rather, he asserts that the

delay in bringing him to trial occurred because the State was “slow on discovery,” on

scientific testing, and on its overall investigation of the case. According to

defendant, he was prejudiced because he was deprived of his freedom while

incarcerated the entire time, and the State, by its delay, had more time to organize

its case against him.

[¶16.] In examining whether a defendant’s constitutional right to a speedy

trial was violated, we consider: “(1) the length of the delay; (2) the reason for the

delay; (3) whether the accused asserted the right; and (4) whether the accused was

prejudiced by the delay.” State v. Jones, 521 NW2d 662, 668 (SD 1994) (citing

Barker v. Wingo, 407 US 514, 530, 92 SCt 2182, 2193, 33 LEd2d 101 (1972)).

Delays of over a year are presumptively prejudicial; delays of less than a year are

not. See State v. Karlen, 1999 SD 12, ¶¶20-21, 589 NW2d 594, 599; State v.

Goodroad, 521 NW2d 433, 437 (SD 1994); State v. Stock, 361 NW2d 280, 284 (SD

3. If this were an appeal on the 180-day rule, no violation presents itself. Trial
counsel conceded during a motions hearing that the period from September
27 through December 31, 2004, “would be held against the defense” in
computing the 180-day rule. Indeed, the trial court found that in the time
frame from September 27, 2004, through May 16, 2005, 261 days were
properly excludable under the 180-day rule. Appellate counsel was not trial
counsel.

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1985); State v. Holiday, 335 NW2d 332, 334-35 (SD 1983); State v. Krana, 272

NW2d 75, 77-78 (SD 1978); State v. Black Feather, 249 NW2d 261, 264 (SD 1976);

State v. Pickering, 87 SD 331, 338, 207 NW2d 511, 515 (1973).

[¶17.] Defendant was arrested on July 23, 2004. His trial began on June 20,

2005. The delay falls thirty-three days short of a year, and therefore, it is not

presumptively prejudicial. “Until there is some delay which is presumptively

prejudicial, there is no necessity for inquiry into the other factors that go into the

balance.” Holiday, 335 NW2d at 334-35 (quoting Barker, 407 US at 530, 92 SCt at

2192, 33 LEd2d 101); see also Karlen, 1999 SD 12, ¶¶20-21, 589 NW2d at 599.

[¶18.] Although defendant alleges that he was prejudiced because the State

had more time to build its case against him, he has not shown how his defense was

prejudiced by the delay. That is the more important question. Indeed, he makes no

claim that because of the delay a defense witness became unavailable or evidence

was lost or degraded. See Jones, 521 NW2d at 669-70; Goodroad, 521 NW2d at 437;

People v. Holtzer, 660 NW2d 405, 414 (MichCtApp 2003) (“enhancement of the

prosecution’s case” is not equal to “impairment of the defense”). His argument that

he was prejudiced because he was incarcerated the entire time is unpersuasive.

The right to a speedy trial is designed to protect a defendant from oppressive

pretrial incarceration, but here his right to a speedy trial was not violated. See

Jones, 521 NW2d at 669. Moreover, it would be unusual to find a constitutional

violation when the 180-day rule has not been violated. See United States v.

Titlbach, 339 F3d 692, 699 (8thCir 2003).

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2. Incriminating Notes

[¶19.] Defendant argues that his right to counsel was violated when Cook

obtained incriminating notes from him while they were in jail. According to

defendant, Cook was acting as an agent for the State when he solicited defendant’s

written responses at law enforcement direction. From defendant’s perspective, this

arrangement began during the interview with Cook on July 20, 2004. Cook denied

having seen Klug in the car trunk, and Agent Gromer strongly encouraged Cook to

be more cooperative. For his part, Cook was concerned that he may be implicated in

a crime and asked Gromer if he could “make it go away.” Agent Gromer said he

could make no promises, but he could talk to the prosecutor and the judge. Gromer

told Cook to “pound the pavement” and “do every God damn thing” he could to find

defendant and Kindall.

[¶20.] When asked at the motion hearing whether Agent Gromer was

enlisting Cook to be an informant, Gromer replied, “Yes, or help us. Not necessarily

be an informant, but to help us gather intelligence as to where [defendant and

Kindall] were at and possibly gather other information.” At that time, both

defendant and Kindall were still suspects and had not been apprehended. Neither

of them was then represented by counsel. Agent Gromer testified that his remarks

— “pounding the pavement” and “doing every God damn thing” — were directed at

motivating Cook to help locate defendant and Kindall.

[¶21.] Following this interview, Agent Gromer and Cook did not speak again

until September 30, after Cook obtained the notes from defendant. It was in this

meeting that Agent Gromer first learned that the notes even existed. At this

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meeting, which was videotaped, Agent Gromer and Cook made statements

defendant now relies on to further his argument. Cook told Agent Gromer that he

had been trying for seven weeks to finally get these letters from defendant.

Apparently, there was a joking reference to the happenstance of defendant’s and

Cook’s adjacent cells: Gromer made a comment about using “every trick in the

book.” And Cook remarked that he was “playing cop.”

[¶22.] Several people testified at the suppression hearing, including Cook,

Agent Gromer, Shawn Wood (a security lieutenant at the jail), and Cook’s attorney,

Randy Connelly. The court also reviewed the transcripts from law enforcement

interviews of Cook. Agent Gromer testified that he did not direct anyone at the jail

to place defendant and Cook in adjacent cells. Nor did he tell Cook to elicit

information from defendant while they were in jail. Cook testified that no one

asked him to solicit incriminating responses from defendant and that he never

considered himself to be an informant. He said that after his arraignment, which

was held along with Kindall’s and defendant’s on August 16, he felt the impact the

crime had when he saw one of Klug’s family members crying in court, and he then

suggested his cooperation to his attorney.

[¶23.] The circuit court’s decision to deny defendant’s motion to suppress was

largely based upon credibility determinations. The court concluded that Cook made

a personal decision to elicit the information, evidenced by the fact that he chose to

keep some of the notes and throw others away. It also found that Agent Gromer did

not recruit Cook to be an agent for law enforcement. No agreement existed,

according to the court. It found that, despite Agent Gromer’s “quip,” law

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enforcement officers did not direct that defendant and Cook be housed adjacent to

each other. Accordingly, the court ruled that defendant’s constitutional rights were

not violated and denied his motion to suppress.

[¶24.] While failing to establish an explicit law enforcement agreement with

Cook, defendant contends nonetheless that an agreement was implicit in the

conduct between Cook and law enforcement officers. Defendant argues that

because it is rare that a defendant will have direct proof of efforts to elicit

information from an accused with counsel, the evidence need only establish that law

enforcement officers must have known they were “circumventing the accused’s right

to have counsel present[.]” See Maine v. Moulton, 474 US 159, 176, 106 SCt 477,

487, 88 LEd2d 481 (1985). Thus, defendant claims that based on the statements

made to Cook, the State “must have known” that Cook would obtain information

from defendant while he was incarcerated. See id.

[¶25.] There was nothing in Agent Gromer’s statements to Cook at the July

20th meeting that proves that the State knew or should have known that Cook

would try to obtain information from defendant, while defendant was incarcerated

and represented by an attorney. Agent Gromer’s comments were made when

defendant was still at large and only a suspect. The circuit court found that there

was no explicit or implicit agreement to have Cook prod defendant for admissions.

A court’s findings of fact from a suppression hearing are reviewed under the clearly

erroneous standard of review. State v. Lockstedt, 2005 SD 47, ¶14, 695 NW2d 718,

722 (citing State v. Guthrie, 2001 SD 61, ¶56, 627 NW2d 401, 423 (citation omitted);

SDCL 23A-32-9). “As long as the police do nothing to direct or control or involve

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themselves in the questioning of a person in custody by a private citizen, such

questioning does not violate the fifth or sixth amendments.” United States v.

Surridge, 687 F2d 250, 255 (8thCir 1982). Because we give deference to the trial

court’s findings of fact and particularly to credibility determinations, we conclude

that the decision was not erroneous.

3. Admission of Co-Conspirator Statements

[¶26.] Defendant argues that the court erred when it admitted Kindall’s out-

of-court statements under SDCL 19-16-3(5). That rule provides, in part,

A statement is not hearsay if it is offered against a party and is:
...

(5) A statement by a co-conspirator of a party during the course
and in furtherance of the conspiracy.

Id. According to defendant, the statements should not have been admitted because

they were not made in furtherance of the conspiracy.

[¶27.] Before a co-conspirator’s out-of-court statement may be admitted in

evidence, (1) “there must be substantial evidence of conspiracy;” (2) “the statement

must have been made while the conspiracy was continuing; and” (3) “the statement

must have constituted a step in furtherance of the conspiracy.” State v. Stavig, 416

NW2d 39, 41 (SD 1987) (citing State v. Smith, 353 NW2d 338 (SD 1984)) (additional

citation omitted). “To satisfy the test of admissibility, there need only be a showing

that there is some reasonable basis for concluding that the statement was made in

furtherance of [the] conspiracy.” Id. (citing Smith, 353 NW2d at 343). A court’s

decision to admit the statements under SDCL 19-16-3(5) is reviewed under the

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clearly erroneous standard. See United States v. Beckman, 222 F3d 512, 523

(8thCir 2000) (citing United States v. Oseby, 148 F3d 1016, 1023 (8thCir 1998)).

[¶28.] In a pretrial motions hearing, the court addressed the admissibility of

Kindall’s out-of-court statements that the State sought to use. The court found

substantial evidence of a conspiracy and that the statements were made while the

conspiracy was continuing. The crux of defendant’s argument was that the

statements were not made in furtherance of the conspiracy, and were, therefore,

inadmissible. The court examined each statement challenged by defendant and

made a specific finding on whether it satisfied SDCL 19-16-3(5). At trial not all the

statements previously found to be admissible by the court were offered.4 Therefore,

we examine only those statements used in trial. 5

[¶29.] First statement as offered at the motions hearing: “Kindall just

laughed and was real jovial about it in calling him [Klug] a puss and that he was

weak.” According to the court, this statement was made in furtherance of the

conspiracy because it was made to induce defendant’s continued participation in the

ongoing crime. The above-quoted statement was not specifically used at trial.

Instead, it was testified that Kindall “thought he [Klug] was weak and she was

4. The State referred to a statement during its opening remarks that was not
later offered during the trial. However, because the court informed the jury
that opening remarks are not evidence, we need not examine the statement.
5. The State contends that even if we find certain statements were admitted in
error we should examine them for admissibility under SDCL 19-16-3(1),
defendant’s own statements. The State did not raise this argument below.
Because the circuit court did not have an opportunity to rule on the
admissibility of the statements under that subsection, this Court will not
address the argument. See State v. Hays, 1999 SD 89, ¶16, 598 NW2d 200,
203.

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really hung up about her money.” On appeal, defendant contends that the

statement was inadmissible because it was merely Kindall bragging, which does not

further the conspiracy. For the statement to be admissible there need only be a

reasonable basis that it was made in furtherance of the conspiracy. Smith, 353

NW2d at 343. We think that it was reasonable to conclude that Kindall made this

statement to enlist Cook to join the conspiracy or to keep defendant in on it.

[¶30.] Second statement as offered at the motions hearing: “She said

that he owed them money from drug transactions that have occurred in the—prior to

that night.” The statement that was ultimately used at trial was that “they

[defendant and Kindall] started talking about—going on about a guy in Rapid City

that they knew had owed them money. . . . They said that the kid owed them money.”

According to the court, the first statement was admissible because it “explained the

nature of the conspiracy to kidnap Klug and collect the drug debt.” Explaining the

nature of the conspiracy, however, does not provide a reasonable basis for

concluding that the statement was made in furtherance of the conspiracy. This

statement, while made when the conspiracy was continuing, was not made (1) to

enlist someone to join the conspiracy; (2) to advance the aims of the conspiracy; (3)

to allay suspicion; or (4) as a narrative statement by one conspirator to another

about what each had done. See Smith, 353 NW2d at 343-44 (citing United States v.

Handy, 668 F2d 407, 408 (8thCir 1982); United States v. Miller, 664 F2d 94, 98

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(5thCir 1981); United States v. James, 510 F2d 546, 549 (5thCir 1975); United

States v. Overshon, 494 F2d 894, 898-99 (8thCir 1974); United States v. Halpin, 374

F2d 493, 495-96 (7thCir 1967)). The court erred in admitting this statement.

[¶31.] Third statement as offered at the motions hearing: “When they

came in the house, they were—when we first started talking, they were upset about

[Klug] being a snitch and they wanted to tattoo the name ‘cop caller’ around his

neck.” At trial, Cook stated that “they” were calling him a “snitch and a rat. . . .

They asked me if I knew any tattooist because they wanted to get this guy [Klug]

tattooed ‘cop caller’ around his neck.” The court concluded that the statement was

admissible because it was made to “induce [defendant’s] continued participation in

the conspiracy. . . . The statement was made to remind [defendant] that Klug gave

information to police and to entice [defendant] to carry out the plan.” We think it

was a reasonable conclusion that the statement was made by Kindall to enlist

defendant’s continued participation in the conspiracy.

[¶32.] Fourth statement as offered at the motions hearing: “Well, isn’t

it [Klug’s]? . . . Well, then it’s ours now.” At trial, Beebe testified that Kindall said,

“Well, if it’s [Klug’s], it’s ours now.” According to the court, the statement was made

in furtherance of the conspiracy because it was made to “explain Kindall’s belief

that she was entitled to Klug’s property to settle a drug debt.” This conclusion

seems strained because it does not establish how the statement was made to further

the conspiracy. It was not made to entice Beebe to join the conspiracy; nor was it

made to keep defendant enlisted. It neither was made to allay Beebe’s suspicions,

nor as a narrative statement to defendant about what she had done. See Smith, 353

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NW2d at 343-44 (citations omitted). On the other hand, it might be considered a

statement in furtherance of the conspiracy because it suggests that Kindall and

defendant were still in the process of collecting on the debt Klug allegedly owed. We

cannot conclude that admitting this statement was clearly erroneous.

[¶33.] Fifth statement as offered at the motions hearing: “She [Kindall]

said that he did come there [Kindall’s house], that she sent him away, and told him

to leave, and that she hadn’t seen him since. . . . And she said that [Klug] would no

longer be a problem for her. And she’s like, isn’t that right, Tory? And Tory’s like,

‘yeah, we have that taken care of.’” At trial, Beebe stated that Kindall said, “Well, he

[Klug] came to my house, but you know, I sent him away. I told him to leave. . . .

They [defendant and Kindall] said he was no longer a problem for them. That it was

taken care of.” Beebe also testified that Kindall said, “Isn’t that right Tory?”, to

which defendant responded, “Yes.” The court found Beebe’s statements to be in

furtherance of the conspiracy because it was intended to “calm Beebe’s fears about

Klug.” Statements made to “allay suspicion” are admissible; therefore, the

statements were not admitted in error. See Smith, 353 NW2d at 343-44 (citations

omitted).

[¶34.] Sixth statement as offered at the motions hearing: “Oh, honey,

no, it’s okay. Don’t worry about it. Just come on, get up. I need you to come with

me. . . . Honey, I’m going to go away to a cabin for a little while. I need you to come

with me. . . . Well, if anything happens or if you get any worse or anything . . . .” At

trial, Beebe claimed that Kindall said, “Honey, I need you to come with me. I got to

go away for awhile and I need you to go with me. . . . I’m going away to a cabin. . . .

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I need you to come with me.” Beebe then testified that defendant said, “We don’t

have time for this. We got to go. . . . Just leave her. She’s not worth it. We got to

go.” The court found the statements to be admissible because “they were made in

an effort to further the conspiracy or conceal its existence[.]” According to the court,

“[t]here is a reasonable basis to believe that [defendant] and Kindall intended to

take Beebe with them as part of their efforts to conceal the crime.” It is reasonable

to conclude that the statements were made in an effort to allay Beebe’s suspicions,

conceal the crime, or enlist her in the conspiracy. See Smith, 353 NW2d at 343-44

(citations omitted). The court did not err in finding the statements admissible.

[¶35.] Seventh statement as offered at the motions hearing: “Yeah, I

washed it in cold water.” This was Kindall’s response to defendant’s question about

washing clothes when they were in North Dakota, a statement that Keefe overheard

and testified to. The circuit court concluded that the statement was admissible

because it was made in an effort to conceal the evidence of the crime. It is

reasonable to deduce that this statement was made to further the conspiracy, which

was to kidnap Klug and take him out of their lives forever. Cleaning up the

evidence furthers that goal. 6

6. As stated in McCormick on Evidence, § 267 at 645 (2d ed):
Literally applied, the “in furtherance” requirement calls for general
exclusion of statements possessing evidential value solely as
admissions, yet in fact more emphasis seems to be placed upon the
“during continuation” aspect and any statements so qualifying in point
of time may be admitted in evidence without such regard to whether it
in fact furthers the conspiracy. . . . Both the “in furtherance” and the
“during continuation” requirement call for exclusion of admissions and
confessions made after the termination of the conspiracy. Questions
arise, of course, as to when termination occurs. Under certain
(continued . . .)
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[¶36.] Eighth statement as offered at the motions hearing: “She said

that it should have been cleaned five days ago.” Keefe also testified to this

statement, and the court found it admissible because it was made in an effort to

conceal the crime. This statement, however, is a narrative statement about what

should have been done in the past. Yet the statement was made during the process

of cleaning up evidence of the crime, and suggests continuation of the conspiracy.

We cannot say that it was clearly erroneous to admit this statement.

[¶37.] Even if some of the statements defendant challenges should not have

been admitted, he has not alleged nor shown how he was prejudiced by these

admissions. He simply claims that they were inadmissible and we should reverse

and grant a new trial. Not every error requires reversal. “[I]f the State shows

beyond a reasonable doubt that the error was not prejudicial” it is considered

harmless. Stanga, 2000 SD 129, ¶20, 617 NW2d at 491 (citations omitted).

[¶38.] Even without these statements, there is overwhelming evidence

supporting the verdict. Cook testified that defendant took him to the trunk of

Kindall’s vehicle and showed him Klug inside. Klug’s legs and hands were bound

with duct tape, and defendant punched Klug in the back, yelling, “wake up mother

fucker.” Cook then testified that the next day he asked defendant what happened

__________________
(. . . continued)
circumstances, extending the duration of the conspiracy beyond the
commission of the principal crime to include concomitant and closely
connected disposition of its fruits or concealment of its traces appears
justifiable, as in the case of police officers who engage in writing up a
false report to conceal police participation in a burglary or disposal of
the body after a murder.

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to the person in the trunk, to which defendant responded that he put him in a

toolbox and left him there all day. That day was extremely hot and Cook asked

defendant if Klug was given water. Defendant responded that he was not, and that

it would have been too late anyway. There was also DNA evidence strongly tending

to prove that Klug was in fact in Kindall’s trunk.

[¶39.] Finally, there were the jailhouse notes written by defendant to Cook.

In the notes, defendant stated, “Oh Yeah, even if they do find some so called

physical evidence, where the hell are they going to get there [sic] DNA to compair

[sic] it to? . . . And Believe Me they ain’t gonna find No body unless some one else

planted somebody. It may have taken me a while to decide what to do but once I

figured it out, it was the best plan, and I executed it with “grinding” precision!

Don’t worry about them finding a body.” In a subsequent letter, defendant stated,

“Yeah, You know that was one of the nastiest things I have ever done . . . . one of

the Nastiest. If a guys gonna make fish food he just as well put it in bite size pieces

Right! What the hell it wasn’t my first rodeo and I’m sure it won’t be my last if I

stay in the business I’ve been in.” Considering the overwhelming evidence of guilt

against defendant, we conclude that Kindall’s out-of-court statements, even if

admitted in error, were not prejudicial.

4. Admitting Statements of Incompetent Co-Conspirator

[¶40.] According to defendant, because Kindall was found incompetent to

stand trial, her out-of-court statements should not have been admitted against him

under SDCL 19-16-3(5) because one cannot conspire with an incompetent person.

Defendant has not directed this Court to any authority to support his proposition

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that when one is found incompetent to stand trial, that person was incapable of

earlier conspiring to commit a crime. Rather, he argues that because Kindall was

found incompetent to stand trial, based on mental conditions she obviously suffered

from for a while, she must also have been incapable of entering into the criminal

agreement required in this case.

[¶41.] Kindall was found incompetent to stand trial by the circuit court.

Although Kindall had a history of brain injury and mental illness, nothing in the

circuit court’s findings declaring Kindall incompetent to stand trial would suggest

that she was insane at the time she conspired with defendant. Indeed, Kindall’s

sanity at the time she entered into the criminal agreement with defendant to

kidnap Klug has not been raised. 7 “Incompetency to stand trial and incapacity to

commit a crime because of insanity are, of course, distinct and separate issues.”

State v. Jones, 406 NW2d 366, 369 (SD 1987); see also State v. Rough Surface, 440

NW2d 746, 757 (SD 1989). Defendant cites no authority for the proposition that a

person found incompetent to stand trial cannot be considered a responsible criminal

conspirator at an earlier occasion. Defendant’s argument on this question is

meritless.

5. Defendant’s Right to Confront and Cross-Examine Witnesses

[¶42.] Defendant claims that because Kindall was not available to testify at

trial, the court erred when it admitted her out-of-court statements. Defendant

7. This Court takes judicial notice of Pennington County criminal file number
04-3272, in which it is recorded that Kindall has since been found competent
to stand trial.

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raised this issue with the circuit court at the December 21, 2004 motion hearing.

The court took the issue under advisement and never entered an oral or written

ruling on the motion. Defendant failed to raise the issue again. At oral argument,

however, appellate counsel insisted that because a general objection was made to

Kindall’s statements and the trial court prohibited “speaking objections,” the

general objection was adequate to preserve the question for appeal. Ordinarily, this

would not be sufficient to avoid waiver of the issue. See Hays, 1999 SD 89, ¶16, 598

NW2d at 203.

[¶43.] Nevertheless, because of the importance of this question, we exercise

our discretion to consider it. In Crawford v. Washington, the United States

Supreme Court ruled that the Confrontation Clause applies to “witnesses,” “those

who bear testimony.” 541 US 36, 51, 124 SCt 1354, 1364, 158 LEd2d 177 (2004). In

that light, the Court stated that “[a]n accuser who makes a formal statement to

government officers bears testimony in a sense that a person who makes a casual

remark to an acquaintance does not.” Id. Therefore, the Confrontation Clause

implicates a “core class” of testimonial statements:

“ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially,” . . . “extrajudicial statements .
. . contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions,” White v.
Illinois, 502 US 346, 365, 112 SCt 736, 116 LEd2d 848 (1992)
(Thomas, J., joined by Scalia, J., concurring in part and
concurring in judgment); “statements that were made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a
later trial,” . . . .

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#23759

Id. at 51-52, 124 SCt at 1364, 158 LEd2d 177.

[¶44.] Although there are exceptions to the hearsay rule, the Court

recognized that historically “there is scant evidence that exceptions were invoked to

admit testimonial statements against the accused in a criminal case.” Id. at 55-56,

124 SCt at 1367, 158 LEd2d 177. Nevertheless, the Court concluded that not

considered as “testimonial” statements were those made in furtherance of a

conspiracy. Id. at 56, 124 SCt at 1367, 158 LEd2d 177 (“Most of the hearsay

exceptions covered statements that by their nature were not testimonial-for

example, business records or statements in furtherance of a conspiracy.”).

[¶45.] In United States v. Inadi, 475 US 387, 394-96, 106 SCt 1121, 1125-26,

89 LEd2d 390 (1986), the Supreme Court first recognized that statements made by

a co-conspirator in furtherance of a conspiracy are not testimonial, and therefore,

are admissible even when the declarant is unavailable. Specifically, the Court

stated, “There are good reasons why the unavailability rule, developed in cases

involving former testimony, is not applicable to co-conspirators’ out-of-court

statements.” Id.

Because [the statements] are made while the conspiracy is in
progress, such statements provide evidence of the conspiracy’s
context that cannot be replicated, even if the declarant testifies
to the same matters in court. When the Government as
here offers the statement of one drug dealer to another in
furtherance of an illegal conspiracy, the statement often will
derive its significance from the circumstances in which it was
made. Conspirators are likely to speak differently when talking
to each other in furtherance of their illegal aims than when
testifying on the witness stand. Even when the declarant takes
the stand, his in-court testimony seldom will reproduce a
significant portion of the evidentiary value of his statements
during the course of the conspiracy. . . .

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#23759

The declarant himself may be facing indictment or trial, in
which case he has little incentive to aid the prosecution, and yet
will be equally wary of coming to the aid of his former partners
in crime. In that situation, it is extremely unlikely that in-court
testimony will recapture the evidentiary significance of
statements made when the conspiracy was operating in full
force.

Id. at 395, 106 SCt at 1126, 89 LEd2d 390. Since Crawford, multiple courts have

recognized that statements made in furtherance of a conspiracy are not testimonial.

United States v. Ramirez, 479 F3d 1229, 1249 (10thCir 2007) (citing Crawford, 541

US at 56, 124 SCt at 1367, 158 LEd2d 177); United States v. Sullivan, 455 F3d 248,

258 (4thCir 2006) (citation omitted); United States v. Allen, 425 F3d 1231, 1235

(9thCir 2005) (citation omitted); United States v. Lee, 374 F3d 637, 644 (8thCir

2004).

[¶46.] Here, although Kindall was unavailable, defendant’s Sixth

Amendment rights were not violated when her statements were admitted at trial.

Kindall was a co-conspirator and her statements were not testimonial. They were

made in furtherance of the conspiracy. Therefore, we find no error.

6. Defendant’s Sentence

[¶47.] Defendant contends that his sentence of 100 years is grossly

disproportionate to the crime of kidnapping, because the court considered the

uncharged crime of murder. According to defendant, because the court expressed

that defendant likely killed Klug and destroyed the body, the court went beyond the

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#23759

scope permitted in sentencing for a kidnapping conviction. 8 Defendant cites no

authority prohibiting a court from considering uncharged conduct, or the probable

consequences of defendant’s acts. A court is permitted to consider uncharged

conduct when acquainting itself with the character of the defendant for sentencing.

8. In its oral sentence the court stated:
In this case, the [c]ourt has looked at a number of factors including the
gravity of the offense. This [c]ourt presided over the trial and listened
to and evaluated the credibility and the demeanor of each and every
one of the witnesses that testified. The [c]ourt has considered the
effect of this crime of kidnapping on the victim, Troy Klug, and Troy’s
family. The evidence establishes that Troy was bound, beaten,
detained in the trunk of a car in sweltering heat, duct taped. That he
was then transferred to a toolbox where he was intermittently beaten
until his death. He suffered terror, loneliness, misery and death. His
body was destroyed and concealed. He was denied a burial. . . .

In analyzing this rehabilitation factor, the Supreme Court has said
that a defendant’s remorse and his prospect for rehabilitation are
proper considerations in sentencing. After exercising your right to a
trial, a defendant’s continued refusal to take accountability may be
considered as a sign of a lack of remorse. . . . In your statement to the
[c]ourt you told the [c]ourt, “yes, I should take responsibility” and you
told the [c]ourt you used methamphetamine. Beyond that you did not
take responsibility for the crime. Now the [c]ourt considers as perhaps
one of the reasons is the fact that further criminal charges for murder
or manslaughter could be brought against you. The [c]ourt considers
that as a possible explanation. Nevertheless, your decision to not
accept responsibility, not to disclose the location of the body is a factor
that can and is considered—can be and is considered by this [c]ourt. . .
.

Your conduct thus far indicates to the [c]ourt that your plan for
rehabilitation is to persist in your denial, bully others while in prison
and keep secret the location of Troy’s body, continuing to conceal your
involvement in this crime. . . .

The jury found that you kidnapped Troy Klug. The legislature
imposed wide discretion for trial courts in sentencing and the reason
for that is there are different kinds of kidnapping. In this kidnapping
(continued . . .)

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#23759

McKinney, 2005 SD 74, ¶17, 699 NW2d at 465-66; see also State v. McCary, 2004

SD 18, ¶8, 676 NW2d 116, 120; State v. Arabie, 2003 SD 57, ¶21, 663 NW2d 250,

257.

[¶48.] We find nothing in the record to suggest that defendant’s sentence was

grossly disproportionate. It is within the statutory maximum of life imprisonment.

See SDCL 22-19-1(3); see also Bonner, 1998 SD 30, ¶17, 577 NW2d at 580.

[¶49.] Affirmed.

[¶50.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.

__________________
(. . . continued)
the victim was placed at enormous risk and all the evidence
establishes, suffered a horrible death at your hands.

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