State v. Little Long

962 N.W.2d 237, 2021 S.D. 38

• Court: South Dakota Supreme Court
• Decided: June 23, 2021
• Docket: 29002
• Status: Published

Opinion

#29002-a-JMK 2021 S.D. 38

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

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

v.

HENRY FRANCIS LITTLE LONG, Defendant and Appellant.

****

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

THE HONORABLE JON SOGN Judge

JASON R. RAVNSBORG Attorney General

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

KRISTI JONES of Dakota Law Firm, Prof. LLC Sioux Falls, South Dakota Attorneys for defendant and appellant.

ARGUED APRIL 22, 2020 OPINION FILED 06/23/21 #29002

KERN, Justice

[¶1.] A jury convicted Henry Francis Little Long (Little Long) of second-

degree murder and first-degree manslaughter for the killing of LaKendrick

Thornton (Thornton). The circuit court sentenced Little Long to life in prison on the

second-degree murder conviction. Little Long appeals, challenging the circuit

court’s admission of certain statements for impeachment purposes, the State’s

compliance with the 180-day rule, and the sufficiency of the evidence. We affirm.

Facts and Procedural History

[¶2.] Just before 1:00 a.m. on September 18, 2018, the Sioux Falls Police

Department received a call reporting that a woman was pounding on the door of a

residence pleading for help. Law enforcement officers located the woman, Ayom

Mangor (Mangor), who told them she had just witnessed a shooting. Mangor told

the officers that earlier that evening she was with Thornton, when they were picked

up by Kelsey Roubideaux (Roubideaux), and a Native American man, (later

identified as Little Long) who was in the front passenger seat. Mangor told the

officers that she was with Thornton when the couple picked them up to drive

Thornton to a location where he could buy drugs. An argument ensued between the

man and Thornton, and Mangor reported that the man in the front passenger seat

pulled out a gun, turned to the back seat, and shot Thornton in the chest.

[¶3.] Panicked, Mangor pushed the rear passenger door open and leapt out

of the backseat of the moving car. She hit the ground, scraping her knees and

hands, and losing a shoe in the process. Despite her best efforts, she was unable to

pull Thornton out with her when she jumped. The shooting occurred near the

-1- #29002

intersection of Nye and Mable in Sioux Falls. Investigators found Thornton’s body

at about 9:30 a.m. that morning in a ditch near Renner, South Dakota, with a single

gunshot wound to the chest. An autopsy later revealed that Thornton died from the

wound sometime between midnight and 2:00 a.m. on September 18, 2018.

[¶4.] Shortly after finding the body, officers identified Little Long as a

suspect and began interviewing people acquainted with him. On September 20,

Sioux Falls Police Department Detective Pat Mertes (Detective Mertes), conducted

a videotaped interview with Margaret Walking Eagle (Walking Eagle), Little Long’s

mother figure who stated that Little Long had been staying at her house. When

questioned about the events that occurred on the night of September 18, she became

very emotional. She stated that Little Long and Roubideaux came to her house.

Little Long had a gun with him and a pair of red tennis shoes. He asked Walking

Eagle to follow him into a back bedroom where he recounted the fight in the car and

said that he had “f***ing killed someone tonight.” Walking Eagle disclosed to law

enforcement that Little Long threatened to kill her if she told anyone.

[¶5.] Police arrested and interviewed Roubideaux on September 20. She

told officers that she borrowed a car from a friend in exchange for drugs. 1 She

stated that she picked up Little Long, her former boyfriend, at a casino in Sioux

Falls and then drove across town to pick up Thornton, who had agreed to assist

them in buying drugs. Thornton got into the back seat of the car with a female

friend. Detective Mertes confirmed the information gleaned from Roubideaux’s

interview by viewing security video footage from a Get-n-Go fuel station, across the

1. The vehicle was a 2001 gold Toyota Camry.

-2- #29002

street from the spot where they picked up Thornton, which captured Thornton and

Mangor entering the backseat of a Toyota Camry before it drove away.

[¶6.] As they approached the designated address for the drug buy, near east

Tenth Street in Sioux Falls, Thornton became paranoid, and a verbal argument

broke out in the car. Roubideaux ordered Thornton to get out. After he refused,

Little Long brandished a gun and repeated Roubideaux’s request to Thornton to get

out of the car. After Roubideaux convinced Little Long to put the gun away,

Thornton told Little Long that he was “tired of people pulling guns on him and not

pulling the trigger.” Roubideaux said that Thornton “doubted” Little Long. At trial,

Roubideaux testified that Little Long then pulled the trigger, shooting Thornton in

the chest, who responded, “you shot me.” Roubideaux initially told the police that

Little Long dropped her off after the shooting and that she had no further

information. Roubideaux subsequently recanted this statement and admitted to

assisting Little Long in disposing of Thornton’s body and cleaning the car.

[¶7.] Little Long was arrested on September 21, 2018 and charged by

complaint with Thornton’s murder. His initial appearance occurred that same day.

On October 3, 2018, a Minnehaha County grand jury issued a three-count

indictment charging Little Long and Roubideaux with first- and second-degree

murder and first-degree manslaughter. 2 As the case progressed, a series of pretrial

motions and scheduling conflicts delayed the trial.

2. Roubideaux, as part of a plea bargain agreement, pled guilty to accessory to murder in connection with Thornton’s death and to an aggravated assault charge arising from an unrelated case.

-3- #29002

[¶8.] Little Long’s seven-day jury trial began on April 8, 2019. The State

called both Roubideaux and Mangor as witnesses. As it related to the events that

transpired in the car, Roubideaux’s testimony was largely identical to her initial

interview with police. She testified that after Little Long shot Thornton, Mangor

started screaming and jumped out of the car. She asked Little Long if she should

take Thornton to the hospital. Little Long said they were not taking him to the

hospital and told her to keep driving. Roubideaux testified that they drove to a

remote location north of Sioux Falls and that she helped Little Long drag

Thornton’s body from the car and dump it in the ditch. Both she and Little Long

had their cell phones with them, and Little Long used the GPS function to

determine their location because they were unfamiliar with the area. At trial, she

testified that she did not know what happened to Thornton’s phone, but Detective

Mertes testified that she told him during the investigation that the phone had been

thrown out the window.

[¶9.] Roubideaux also testified that after dumping the body, she drove Little

Long to Walking Eagle’s house where they stayed for a short time. She then took

Little Long to his girlfriend’s house where they used bleach and wipes to remove the

blood from the interior of the car. She testified that she cleaned up the blood, and

Little Long disposed of the remaining items that were left in the car.

[¶10.] Mangor testified that she was with Thornton when Roubideaux, who

was driving a gold Camry, picked them up at a friend’s house near the intersection

of 4th and Cliff. She knew Roubideaux from an earlier meeting with her at the

Nites Inn when Mangor was looking for Thornton. Roubideaux had a male

-4- #29002

passenger in the front seat, so she and Thornton slid into the back seat with

Mangor sitting directly behind the male passenger in the front. An argument broke

out in the car which Mangor testified was caused by Roubideaux’s inability to follow

the directions Thornton was giving her. The man in the front seat pulled out a gun

twice. The first time, Mangor testified that he pointed it at her head. The second

time he pulled out the gun, she heard Thornton say, “You’re not going to keep on

waving that gun around. You’re just not going to—if you’re going to shoot, just

shoot.” The man replied, “You think I’m not going to shoot?” and then shot

Thornton in the chest. Mangor testified that she flew out of the vehicle, leaving a

shoe behind on the street.

[¶11.] The State also called several witnesses to the stand to testify about the

location and condition of Thornton’s body in the ditch where it was discovered. Erin

McCaffrey (McCaffrey), a forensic specialist with the Sioux Falls Police Department,

testified that she photographed Thornton’s body, which was clothed in only a shirt,

underwear, and a sock, before crime scene specialists removed the body from the

scene. McCaffrey lifted Thornton’s shirt and observed a bullet wound to his chest.

She testified that she returned later to the scene that evening and applied BlueStar

to the area. The BlueStar revealed a trail of blood extending from the road to the

place where the body was found in the ditch. 3 McCaffrey also obtained Little Long’s

fingerprints after his arrest.

3. BlueStar is a chemical that reacts with small traces of blood that may not be visible to the naked eye, producing a bright blue chemiluminescence that can be photographed.

-5- #29002

[¶12.] Detective Mertes testified that he was called to the scene and, based on

the information he had, he obtained an arrest warrant for Roubideaux and

disseminated photos of the Toyota Camry to patrol officers. The car was located at

the Lucky Lady Casino in Sioux Falls on September 19. After obtaining a search

warrant, law enforcement officers had the vehicle towed to the crime lab storage

facility where it was processed by the officers and evidence technicians.

[¶13.] Detective Derek Kuchenreuther (Detective Kuchenreuther) of the

Sioux Falls Police Department testified regarding the records he recovered from his

subpoenas to Verizon for data generated on September 18 between midnight and

2:00 a.m. from phones connecting to the cell-phone towers closest to the place where

Thornton’s body was found. From this data, he determined that, between 1:12 a.m.

and 1:23 a.m., Thornton’s and Roubideaux’s cell phones were hitting off the same

cell tower from approximately the same location near the ditch where Thornton’s

body was located. Detective Mertes testified that this tower was located 1.65 miles

from the spot where Thornton’s body was found. Additionally, Detective Mertes

testified that he was able to obtain data extracted from the Tracfone 4 Little Long

was carrying at the time of his arrest, which led to the discovery of Little Long’s

social media accounts. Using the data he received from Detective Kuchenreuther

and the cell-phone providers, he plotted the path taken by Roubideaux’s cell phone

from the place where the shooting occurred to the place where Thornton’s body was

4. Tracfone is a cell phone provider similar to Verizon, but Tracfone contracts with a variety of providers in order to use their networks and cell towers.

-6- #29002

dumped. All three phones were connecting to the cell towers along this route at

approximately the same times.

[¶14.] The State also called witnesses to testify regarding evidence recovered

from the car. Deputy Mark Toft (Deputy Toft) testified that he found fingerprints,

which he later determined to be Little Long’s, on a Rock Star energy drink located

in the passenger side door compartment of the front seat. He also described blood

located on the back side of the front passenger seat and in other spots in the car.

Deputy Toft described his observation of miniscule droplets of blood covering the

driver’s seat area which, by its presentation, indicated that it had been

expectorated. Forensic experts conducted a DNA analysis, which determined that

some of the blood found in or on the vehicle was Thornton’s blood, including all the

blood found under the rear passenger seat door molding. Dr. Kenneth Snell, the

coroner who performed the autopsy, testified that Thornton died of a single gunshot

wound to the chest sometime after midnight.

[¶15.] Walking Eagle testified for the State in its case-in-chief and was

recalled to the stand several times. She claimed that she had no memory of the

night of the incident or her interview with Detective Mertes, despite having

watched the recording of her interview outside the presence of the jury to refresh

her memory. The circuit court then allowed the State to recall Detective Mertes to

impeach Walking Eagle’s credibility by introducing the prior statements she made

to him about Little Long.

[¶16.] At the end of the State’s case, Little Long moved for judgment of

acquittal. The circuit court denied the motion, and the case proceeded to the

-7- #29002

defense’s case-in-chief. Little Long called Ginny Rothwell (Rothwell) to testify in

support of his theory that Roubideaux or one of her friends killed Thornton.

Rothwell testified that on September 18, she and Frederick Eagle Tail (Eagle Tail)

picked up Roubideaux and took her to get some food. They stopped at the Kum and

Go convenience store. Roubideaux stole some items from the store, and the clerk

took pictures of Rothwell’s car as they drove off. When questioned by law

enforcement about the incident, Rothwell told the officers that she had been

contacted by Eagle Tail through a Facebook message, and he asked her if she

wanted to buy a pistol from him. Rothwell asked Eagle Tail if the gun had been

fired. When she learned that it had, she declined to buy it. Little Long argued in

closing that Eagle Tail may have tried to sell the pistol for Roubideaux who could

have killed Thornton.

[¶17.] As part of his defense, Little Long also focused on the absence of

physical evidence against him pointing to the fact that his DNA was not in the car

or on the body, and the murder weapon was never found. Focusing on Mangor’s and

Roubideaux’s methamphetamine use that night and Roubideaux’s status as an

accomplice, he also attacked their credibility. Further, Little Long argued that the

State failed to show that he had any motive to kill Thornton.

[¶18.] Little Long rested his case and renewed his motion for judgment of

acquittal, which the court denied. The jury returned guilty verdicts for second-

degree murder and first-degree manslaughter but acquitted Little Long of first-

degree murder. For the crime of second-degree murder, the circuit court sentenced

Little Long to life in prison without the possibility of parole.

-8- #29002

[¶19.] Little Long appeals, raising three issues for our review:

I. Whether the circuit court’s evidentiary rulings regarding the testimony of Walking Eagle and her subsequent impeachment were erroneous.

II. Whether the circuit court violated Little Long’s right to be brought to trial within 180 days under SDCL 23A-44-5.1.

III. Whether the circuit court erred by denying Little Long’s motions for judgment of acquittal.

Analysis and Decision

I. Whether the circuit court’s evidentiary rulings regarding the testimony of Walking Eagle and her subsequent impeachment were erroneous.

[¶20.] Little Long asserts that the circuit court erred by allowing the State to

ask Walking Eagle a series of questions about her statements to Detective Mertes

incriminating Little Long, which the State knew she would deny making. In Little

Long’s view, the hearsay statements were offered for the sole purpose of then calling

Detective Mertes to elicit the statements under the guise of impeachment. Little

Long submits that the court’s rulings admitting this evidence violated three rules of

evidence to his prejudice. First, Little Long asserts the court erred by permitting

Walking Eagle to review her prior interview, outside the presence of the jury, to

determine admissibility under SDCL 19-19-803(5) when she stated it would not

help refresh her recollection. Second, he contends that the impeachment evidence

was improperly admitted violating SDCL 19-19-613(b) and his Sixth Amendment

right to confront Walking Eagle. And finally, Little Long asserts that the admission

of the testimony was unfairly prejudicial under SDCL 19-19-403.

-9- #29002

[¶21.] In order to evaluate the context in which the statements were

permitted, it is necessary to set forth the background leading to their admission.

Immediately prior to trial, Walking Eagle was arrested in Pierre on a material

witness warrant and transported to Sioux Falls. When the State called Walking

Eagle to the stand at trial, she claimed she had no memory of her conversation with

Little Long or her subsequent interview with the police. The following colloquy

occurred:

The State: Okay. I want to specifically turn your attention back to September 18th, the early morning of September 18th. Do you remember that day? Walking Eagle: No. The State: You don’t remember that day? Walking Eagle: No. The State: Do you remember having Kelsey Roubideaux and Henry [Little] Long coming to your home that day? Walking Eagle: No. The State: Do you recall talking to Detective Mertes about having Kelsey Roubideaux and Henry [Little] Long coming to your house that day? Walking Eagle: No, I don’t. The State: You don’t recall being interviewed by law enforcement? Walking Eagle: No. The State: You look confused. What do you remember about that time frame? Walking Eagle: I’m trying to remember the day. I can’t even remember back. ... The State: If you were to watch that recorded interview, would that refresh your memory as to what took place on September 20th in your conversation with Detective Mertes? Walking Eagle: No.

[¶22.] After this discussion, the State requested a recess. Once outside the

presence of the jury, the State argued the recording was admissible for

impeachment purposes under SDCL 19-19-613(b) as extrinsic evidence of a prior

-10- #29002

inconsistent statement. The defense objected, asserting that Walking Eagle was

unavailable because of her lack of memory regarding these particular statements

and therefore not available for cross-examination, which would violate Little Long’s

Sixth Amendment right to confront the witnesses against him. See generally

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

[¶23.] The circuit court ruled that it would permit the State to attempt to

refresh Walking Eagle’s memory by showing her the 21-minute video of her

interview with the police because it wanted “the defense to have an opportunity to

cross-examine on it.” If the tape refreshed her memory, the circuit court held that it

would not admit the video. However, if she still could not recall the interview, the

court indicated that the video may be admissible under SDCL 19-19-803(5) as

evidence of Walking Eagle’s past recorded recollection. The court stated that if

admitted under this rule, the video would be shown to the jury, but not received as

an exhibit.

[¶24.] After watching the recording, Walking Eagle was recalled before the

jury and the following questions were asked:

The State: Now Ms. Walking Eagle, you just had an opportunity to review your interview from September 20, 2018, with Detective Mertes. Did that refresh your memory as to what you had talked to Detective Mertes about? Walking Eagle: No, it hasn’t. The State: That did not refresh your memory at all? Walking Eagle: No. The State: Watching yourself be interviewed on September 20th did not refresh your memory as to what you said to him? Walking Eagle: No.

-11- #29002

The State: Okay. And the information would have been on September 20th in regards to an incident that took place on September 18th; is that correct? Walking Eagle: I don’t know. The State: Did you watch that interview? Walking Eagle: Yes, I did. The State: Did you see yourself in that interview? Walking Eagle: I seen somebody. The State: Okay. Sounded like you? Walking Eagle: Sounded like me. The State: Looked like you? Walking Eagle: Pretty high, yeah. ... The State: And you don’t recall what you’re—you don’t recall today what you told him at that time? Walking Eagle: No, I don’t. The State: And that was an audio and a visual recording of you being spoken to by the detective; correct? Walking Eagle: I guess it is. The State: And that, you would agree with me, would reflect your knowledge as of September 20th of what you knew of the incident? Walking Eagle: No. The State: That would not have accurately reflected your knowledge? Walking Eagle: No, I don’t remember any of it.

[¶25.] The State again excused her from the stand and called another

witness. Thereafter, the court met with counsel outside the presence of the jury to

discuss the admissibility of the video under various exceptions to the hearsay rule.

The court, while acknowledging Crawford’s nearly categorical holding that “when

the declarant appears for cross-examination at trial, the Confrontation Clause

places no constraints at all on the use of his prior testimonial statements,” State v.

Toohey, 2012 S.D. 51, ¶ 16, 816 N.W.2d 120, 128 (quoting Crawford, 541 U.S. at 59

n.9, 124 S. Ct. at 1369 n.9), nonetheless declared Walking Eagle unavailable after

expressing concerns as to whether the United States Supreme Court had

definitively ruled on this issue where a witness has no memory of the events in

-12- #29002

question. 5 The court reasoned that because courts were divided on how to treat a

witness who claimed no memory of an event and this Court had not yet spoken on

this precise question, the best approach was to deem her unavailable. Based on

Walking Eagle’s testimony that she could not remember her conversation with

Detective Mertes or its contents, the court held that the video was hearsay, not

within any of the stated exceptions and therefore inadmissible. Whereupon, the

State recalled Walking Eagle and asked her a series of direct questions including:

The State: Do you know Kelsey Roubideaux. Walking Eagle: No, I don’t. ... The State: You don’t know her at all? Walking Eagle: No, I don’t. The State: Have you ever known Kelsey Roubideaux to be at your home? Walking Eagle: My home? No. ... The State: On September 18 of 2018 in the early morning hours, did you have a conversation with Henry [Little] Long? Walking Eagle: No. The State: Did Henry [Little] Long come to your house? Walking Eagle: No. ... The State: Did Henry [Little] Long tell you that morning that he had shot a man? Walking Eagle: No.

[¶26.] Based on the State’s exchange with Walking Eagle, the State

requested a recess. Once outside the presence of the jury, the State informed the

court that it intended to impeach Walking Eagle’s credibility by using her prior

inconsistent statements to law enforcement made during her police interview. In

particular, the State argued that Walking Eagle’s prior statements to police,

5. The State did not file a notice of review to challenge this ruling on appeal.

-13- #29002

including her statement that Little Long confessed to her, were inconsistent with

her testimony that she did not speak with Little Long on the night of the killing.

Arguing that extrinsic evidence was permitted to impeach a witness’s credibility in

this context, the State again requested admission of the video of Walking Eagle’s

interview.

[¶27.] The court agreed that the statements were inconsistent and, after

performing the requisite balancing test under Rule 403, held that the probative

value of the evidence was not substantially outweighed by the danger of unfair

prejudice. The court, however, denied the request to introduce the entire recorded

interview. 6 Instead, the court indicated it would admit only those portions of the

recording that were impeaching and that it would give limiting instructions at the

time the evidence was elicited and as part of the final written instructions of law.

[¶28.] The defense again objected to admission of the recording as

unnecessary and prejudicial. In response, the State withdrew its request to

introduce the video and offered to introduce the inconsistent statements through

Detective Mertes, which the court approved. The State then requested and received

permission to recall Walking Eagle. The court brought the jury back into the

courtroom, and the State asked Walking Eagle a series of questions including the

following:

The State: When he [Little Long] came to your house on the early morning of September 18th, did he have a pair of red shoes with him? Walking Eagle: No.

6. The circuit court also ordered the State to redact the video to remove certain statements that it found unfairly prejudicial under Rule 403.

-14- #29002

The State: Did he have a wallet? Walking Eagle: No. The State: Did he have a gun? Walking Eagle: No. The State: At one point[,] did he take out the gun and put it on the table? Walking Eagle: No. ... The State: Did you—Did he tell you: “I f***ing killed someone tonight?” Walking Eagle: No. The State: Was Kelsey Roubideaux in your house that early morning? Walking Eagle: No. ... The State: Did Henry tell you: “I’m coming for you, Mom, if you tell anybody; I love you, but I’m coming for you?” Walking Eagle: No.

After her testimony, the State excused Walking Eagle from the stand and called

Detective Mertes, who testified in part as follows:

The State: Now, did you ask Ms. Walking Eagle if she knew a Kelsey Roubideaux? Mertes: I did. ... The State: Did she indicate she knew Kelsey Roubideaux? Mertes: Yes, she did. ... The State: Did she indicate whether Kelsey Roubideaux and Henry [Little] Long had come to her home that early morning? Mertes: She did. ... The State: Specifically in regards to Henry [Little] Long, did [Walking Eagle] tell you about any conversation she had with Henry [Little] Long that morning? Mertes: She did. The State: What did she tell you? Mertes: She stated that Mr. [Little] Long had asked her back into her bedroom and then began to make statements about what had taken place earlier. The State: And what did she tell you he had told her? Mertes: He said that he’d shot a man.

-15- #29002

The State: Did she tell you what led up to him shooting the man or what the defendant told her had led up to the shooting? Mertes: That there was an argument taking place in the vehicle, and that basically he and Mr. Thornton— ... The State: Did Ms. Walking Eagle indicate to you that [Little Long] had told her “I f***ing killed someone tonight”? ... Mertes: Yes. 7

Detective Mertes, also testified that Walking Eagle said that Little Long brought a

pair of red shoes, a wallet, and a handgun into the house with him.

[¶29.] We review a circuit court’s evidentiary rulings for an abuse of

discretion. State v. Janklow, 2005 S.D. 25, ¶ 32, 693 N.W.2d 685, 697 (citations

omitted). However, we review whether Little Long’s Sixth Amendment right to

confrontation was violated de novo. State v. Spaniol, 2017 S.D. 20, ¶ 23, 895

N.W.2d 329, 338 (citations omitted).

Recorded recollection refreshed: SDCL 19-19-803(5)

[¶30.] Hearsay is “a statement that: (1) [t]he declarant does not make while

testifying at the current trial or hearing; and (2) [a] party offers in evidence to prove

the truth of the matter asserted in the statement.” SDCL 19-19-801(c). There are

many exceptions to the rule against hearsay, regardless of the availability of the

declarant, including a recorded recollection of a statement made by a witness while

7. At the close of the State’s case, the court told the parties that before it permitted Detective Mertes to testify, it again conducted the Rule 403 balancing test and found the probative value of the impeachment questions were not substantially outweighed by the danger of unfair prejudice.

-16- #29002

the matter was fresh in the mind of the witness which accurately reflects that

knowledge. SDCL 19-19-803(5). 8

[¶31.] Little Long first argues that the circuit court abused its discretion by

allowing Walking Eagle to view the video of her interview because she testified it

would not refresh her memory. We see no abuse of discretion in the court’s decision.

SDCL 19-19-612(a) “provide[s] for the method of refreshing witness recollection

called present recollection refreshed.” Carpenter v. City of Belle Fourche, 2000 S.D.

55, ¶ 20, 609 N.W.2d 751, 760 (quoting John W. Larson, South Dakota Evidence §

612.1 at 438 (1991)). “This involves the use of anything that will actually trigger

the witness’ memory so that the witness may thereafter actually testify from

memory. Anything that will cause the memory to be regained, . . . is permitted.”

Id. (citation omitted) (internal quotation mark omitted). Here, the State apologized

to the court, stating that it was unaware that Walking Eagle’s testimony would

deviate from what she previously said in her interview. Allowing the State to show

her the video outside the presence of the jury was a reasonable step to take to

8. SDCL 19-19-803(5) provides in relevant part:

The statements described in this section are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: ... (5) Recorded recollection. A record that: (A) Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) Was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) Accurately reflects the witness’s knowledge.

-17- #29002

refresh the memory of the witness and, as the court noted, to ensure that she was

subject to cross-examination on the contents of the interview.

[¶32.] Little Long next argues that bringing Walking Eagle before the jury a

second time was improper because she did not claim knowledge of her interview

even though she had just watched it. While it may have been a better practice to

determine whether her recollection was refreshed outside the presence of the jury,

the court ultimately denied the State’s request to introduce the evidence under

SDCL 19-19-803(5). Though the court believed the exception applied, it found that

the State had not established sufficient foundation for the introduction of the

recorded interview as substantive evidence—a ruling the State has not challenged

on appeal. Under the circumstances, Little Long has failed to explain how he was

prejudiced by this second colloquy, wherein Walking Eagle claimed she had no

knowledge of the interview. 9

Impeachment by prior inconsistent statements: SDCL 19-19-613

[¶33.] The credibility of a witness may be attacked by any party, including

the party that called the witness. SDCL 19-19-607. Even when the prior

9. The State submits that Little Long’s threat to Walking Eagle that he would be “coming for her,” if she told anyone that he killed someone that night, was likely the reason for her feigned “amnesia and unavailability.” In the State’s view, such evidence was admissible per SDCL 19-19-804(b)(6) as a statement offered against a party that wrongfully and intentionally caused the declarant’s unavailability. At trial, the State argued unsuccessfully that the threat served as a basis for the application of SDCL 19-19-804(b)(3)’s hearsay exception for statements against interests, but it did not identify SDCL 19- 19-804(b)(6) as a basis. The circuit court did not, accordingly, have an opportunity to consider the issue, and we decline to address the argument for the first time on appeal.

-18- #29002

inconsistent statement is ordinarily inadmissible, it may be admitted for the limited

purpose of impeaching the witness under SDCL 19-19-613(b). 10

[¶34.] In order “[t]o properly impeach, the prior statement must be

inconsistent with the witness’s current testimony and it must not be on a collateral

issue.” State v. Wills, 2018 S.D. 21, ¶ 13, 908 N.W.2d 757, 762 (citation omitted).

The witness may be asked if “he or she made the prior statement without disclosing

its contents to the witness.” Id. (citing SDCL 19-19-613(a)). But upon request, the

statement must be shown to opposing counsel. Id. (citing SDCL 19-19-613(a)). “If

the witness admits making the statement, no further foundation is necessary.” Id.

Should the witness deny making the statement, however, extrinsic evidence may be

introduced to prove that the witness made an inconsistent statement. Id. (citing

SDCL 19-19-613(b)).

[¶35.] It is uncontested that the statements were clearly inconsistent,

previously disclosed, and given under an appropriate limiting instruction prior to

Detective Mertes’s testimony. 11 See State v. Gage, 302 N.W.2d 793, 798 (S.D. 1981)

10. SDCL 19-19-613(b) provides in relevant part:

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under subdivision 19-19-801(d)(2).

11. Before permitting the impeachment testimony, the circuit court instructed the jury as follows:

Sometimes evidence is received for a very limited purpose, and that’s what’s going to happen with the answer to this question and some of (continued . . .) -19- #29002

(identifying four requirements for admitting prior inconsistent statements).

However, Little Long argues that because the prior inconsistent statements could

not be offered for the truth of the matters asserted, they lacked relevance given

Walking Eagle’s initial testimony denying any recollection of the events about

which she was being questioned. See id. at 789 (requiring that, to be relevant, the

inconsistency must be such that the State’s “case will be adversely affected if the

inconsistent testimony is allowed to stand” (quoting United States v. Rogers, 549

F.2d 490, 496 (8th Cir. 1976)). In response, the State maintains the prior

inconsistent statements were highly probative because, if left unanswered, Walking

Eagle’s denials regarding whether she knew Roubideaux and whether Roubideaux

and Little Long came to her house on the morning in question were directly

contradictory to the testimony of Roubideaux, the State’s key eye witness.

[¶36.] We agree that some of Walking Eagle’s prior inconsistent statements

were relevant to impeach her credibility as to these particular matters. However,

the relevancy of Walking Eagle’s prior statements pertaining to Little Long’s

confession and his other actions on the morning in question cannot be gauged by

________________________ (. . . continued) the questions to follow. It’s received for a limited purpose. And let me try to explain that a little bit more. So the credibility of Margaret Walking Eagle may be attacked by introducing evidence that on some former occasion Ms. Walking Eagle made a statement on a matter of fact or acted in a manner inconsistent with her testimony in this case on a material—excuse me, on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of Margaret Walking Eagle. But you must not consider any such prior statement as establishing the truth of any fact contained in that statement.

-20- #29002

considering the truth of the matters asserted. In this vein, Little Long further

argues that because no evidence contrary to Walking Eagle’s denials as to these

particular events had been admitted in the State’s case, the probative value of

Walking Eagle’s prior inconsistent statements for impeachment purposes was

minimal because there was no substantive testimony to impeach. Little Long

asserts that the State used Walking Eagle as a “strawman” to “blatantly back-

door[]” the admission of evidence that would otherwise be inadmissible, violating

his confrontation rights in the process.

[¶37.] In Rufener II, we made clear that SDCL 19-19-607 prohibits the State

from calling a witness “only to serve as a ‘strawman’ for the introduction of

inadmissible hearsay . . . .” State v. Rufener (Rufener II), 401 N.W.2d 740, 744 (S.D.

1987) (citation omitted). And although “impeachment of one’s own witness” by prior

inconsistent statement “may be permitted, this does not go so far as to permit the

use of the rule as a subterfuge to get to the jury evidence otherwise inadmissible.”

Id. (citation omitted). Therefore, we counseled that when deciding whether to admit

such evidence, courts “must exercise extreme caution when the impeaching evidence

goes beyond simply proving that the witness was incredible and begins to persuade

by illegitimate means.” Id.

[¶38.] Indeed, the difference between impeachment evidence and substantive

evidence can be subtle and a jury can miss the difference. Id. (citation omitted).

Impeachment evidence is evidence introduced into the record for the limited

purpose of attacking a witness’s credibility. As such, it is not offered for the truth of

the matter asserted and is not hearsay. Wills, 2018 S.D. 21, ¶ 12, 908 N.W.2d at

-21- #29002

762 (holding impeachment, by definition, is not hearsay). In contrast, evidence is

substantive when the purpose for its admissibility is not to attack a witness’s

credibility, but rather to admit the prohibited hearsay for its truth in order to prove

the defendant’s guilt. Rufener II, 401 N.W.2d at 744 (citation omitted).

[¶39.] The State’s reason, at least initially, for calling Walking Eagle to the

stand did not, as Little Long argues, center around admitting the impermissible

hearsay statements in the police interview. It was only after Walking Eagle, to the

State’s apparent surprise, refused to answer questions regarding Little Long’s

admissions and his other actions that night that the State sought to impeach her by

introducing her prior statements to Detective Mertes. However, after Walking

Eagle twice denied any recollection of the events surrounding her contact with

Roubideaux and Little Long and also denied any recollection of her interview with

the detective, the State then recalled her a third and fourth time to ask her very

specific questions that essentially parroted the statements Walking Eagle had

related in her interview with Detective Mertes. By this time, the State can no

longer claim it was surprised by her denials, and it is apparent that the State’s

additional specific questions were posed as a predicate to then offer extrinsic

evidence of Walking Eagle’s contrary statements to Detective Mertes. Because of

the potential that the jury might consider these statements for more than just

impeachment, we must address the Rule 403 concerns arising from the admission of

such evidence.

-22- #29002

Balancing test: SDCL 19-19-403

[¶40.] This Court’s analysis in Rufener II, which focused on the State’s

motives, is an elusive test requiring us to analyze a prosecutor’s state of mind.

Other courts, including the Eighth Circuit Court of Appeals, look not to the

prosecutor’s motives, but instead to the admissibility of the impeachment evidence

under Rule 403 when analyzing whether the impeachment evidence is a “mere

subterfuge.” See, e.g., United States v. Logan, 121 F.3d 1172, 1175 (8th Cir. 1997);

United States v. Ince, 21 F.3d 576, 580 (4th Cir. 1994). Under SDCL 19-19-403, a

court may exclude even relevant evidence, “if its probative value is substantially

outweighed” by the danger of unfair prejudice. Balancing the evidence under Rule

403 is the “clearly preferable approach” because it does not require that we

speculate regarding a prosecutor’s motivations. Jeffrey Bellin, 30B Fed. Prac. &

Proc. Evid. § 6729 (2021 ed.). We hold this is a more reliable form of analysis.

[¶41.] Applying Rule 403’s balancing test, rather than trying to discern

motive, is both practical and logical because both “inquiries will often get to the

same answer.” Id. See also United States v. Buffalo, 358 F.3d 519, 527 (8th Cir.

2004) (“Eighth Circuit case law clearly provides that the probative value of a Rule

613(b) prior inconsistent statement must be weighed against the prejudicial effect of

its admission . . .” (citing Logan, 121 F.3d at 1175)). This is because when the State

“introduces testimony that provides no real harm to [the] case,” its evidentiary

weight with respect to the substantive issues of the case is minor. Bellin, supra ¶

40, at § 6729. As a consequence, “the probative value of impeachment will be

miniscule.” Id. However, when the prior inconsistent statement is highly

-23- #29002

prejudicial, 12 “[t]he jury would be tempted to rely on the out-of-court statement not

for the proper, miniscule purpose of impeaching the witness’ testimony, but rather

for the improper purpose . . . .” Id. Therefore, balancing the admissibility of the

proffered evidence under Rule 403 leads to the more reliable result.

[¶42.] Little Long argues that the circuit court erred in its Rule 403

determination because the probative value of impeaching the testimony of Walking

Eagle is negligible when compared to the inflammatory nature of his admissions to

Walking Eagle. We agree.

[¶43.] In Ince, the Fourth Circuit applied the Rule 403 balancing test to

nearly the same scenario that we review today. 21 F.3d at 580. In that case, the

witness testified that she could not remember a previous statement she made to law

enforcement in which she stated that the defendant admitted to committing the

crime. The court concluded that Rule 403 required exclusion because the risk of

unfair prejudice “is multiplied when the statement offered as impeachment

testimony contains the defendant’s alleged admission of guilt.” Id. at 581. Along

these lines, it held that a court “should rarely, if ever, permit the Government to

‘impeach’ its own witness by presenting what would otherwise be inadmissible

hearsay if that hearsay contains an alleged confession to the crime for which the

defendant is being tried.” Id.

12. Under “Rule 403, ‘prejudice’ does not mean the damage to the opponent’s case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” Rufener II, 401 N.W.2d at 744 n.3 (citation omitted).

-24- #29002

[¶44.] In this case, Detective Mertes’s testimony in which he repeated

Walking Eagle’s statement that Little Long said “I f***ing killed someone tonight”

was highly prejudicial. While Walking Eagle’s statements to police had significant

probative value with respect to proving Little Long’s guilt, they were not, and could

not, be admitted under this exception for this purpose, and therefore, the

impeachment value of the statements was limited. The State could have used a

number of other inconsistent statements to impeach Walking Eagle, but instead

chose to “impeach” her testimony, that she never interacted with Little Long on the

date in question, by eliciting the most prejudicial statement she had previously

claimed Little Long made to her. Because of the potential danger of the jury

considering this testimony for the truth of the matters asserted, the Rule 403

concerns substantially outweighed the probative value of this statement for

impeachment purposes. Thus, we conclude that the circuit court abused its

discretion by admitting Walking Eagle’s prior statements made to Detective Mertes

detailing Little Long’s alleged confession and other actions that evening. While our

ruling does not hinge on the prosecutor’s motives, we caution prosecutors to refrain

from attempting to admit so-called impeachment evidence, which is nothing more

than a subterfuge for hearsay. And although the court twice performed the

balancing test, it failed to correctly weigh the prejudicial effect of Little Long’s

statements made to Walking Eagle.

Confrontation Clause

[¶45.] With regard to Little Long’s claim that his confrontation rights were

violated, the Sixth Amendment provides that the accused enjoys the right “to be

-25- #29002

confronted with the witnesses against him . . . .” U.S. Const. amend. VI. “A

violation of the Confrontation Clause ‘occurs when the witness making the

testimonial statements is both unavailable and has not previously been subject to

cross-examination.’” State v. Rodriguez, 2020 S.D. 68, ¶ 46, 952 N.W.2d 244, 257

(quoting State v. Richmond, 2019 S.D. 62, ¶ 30, 935 N.W.2d 792, 801); See also

Crawford, 541 U.S. at 59, 124 S. Ct. at 1369. Testimonial statements are loosely

defined as “a solemn declaration or affirmation made for the purpose of establishing

or proving some fact.” State v. Reinhardt, 2016 S.D. 11, ¶ 7, 875 N.W.2d 25, 27

(quoting Crawford, 541 U.S. at 51, 124 S. Ct. at 1364). Testimonial hearsay

includes, at a minimum, “police interrogations and ‘prior testimony at a preliminary

hearing, before a grand jury, or at a former trial.’” Richmond, 2019 S.D. 62, ¶ 27,

935 N.W.2d at 800 (quoting Crawford, 541 U.S. at 68, 124 S. Ct. at 1374).

[¶46.] Here, it is evident that Walking Eagle’s statements to the police, two

days after the killing, were designed to be used for prosecutorial purposes, and the

statements were not previously subject to cross-examination. However, the court

admitted the statements, not for the truth of the matters asserted, but solely for

impeachment. Because statements offered for impeachment are not, by definition,

hearsay, their admission does not implicate the Confrontation Clause concerns

addressed by Crawford. See Wills, 2018 S.D. 21, ¶ 12, 908 N.W.2d at 762.

Nevertheless, because of the Rule 403 prejudice concerns we have identified in this

case, we address the merits of Little Long’s Confrontation Clause claim in the event

the jury may have improperly considered the statements for the truth of the

matters asserted notwithstanding the court’s admonishment.

-26- #29002

[¶47.] Importantly, the circuit court, when ruling that Walking Eagle was

unavailable, did not have the benefit of our recent decision in Rodriguez, 2020 S.D.

68, ¶¶ 47-52, 952 N.W.2d at 257-59. 13 In Rodriguez, we held that a witness may be

unavailable under an evidentiary hearsay rule, but nevertheless available for

confrontation. After a witness in the Rodriguez trial could not remember making

prior statements to investigating officers, the circuit court declared her unavailable

under the provisions of SDCL 19-19-804(a)(3). However, upon review, we held that

this determination did not mean the witness was unavailable for purpose of the

Confrontation Clause which “guarantees only an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Rodriguez, 2020 S.D. 68, ¶ 50, 952

N.W.2d at 258 (quoting United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838,

842, 98 L. Ed. 2d 951 (1988)). By refusing the opportunity to cross-examine, the

defendant in Rodriguez failed to “establish that he was denied ‘the traditional

protections of the oath, cross-examination, and opportunity for the [fact-finder] to

observe the witness’[s] demeanor’ secured by the Sixth Amendment.” Id. ¶ 51, 952

N.W.2d at 259 (quoting Owens, 484 U.S. at 560, 108 S. Ct. at 843) (alteration in

original).

[¶48.] Likewise, Little Long chose not to cross-examine Walking Eagle about

her initial alleged inability to remember her interview with Detective Mertes, as

13. The circuit court recognized the potential that unavailability for the exceptions to the hearsay rule may not preclude availability for purposes of the right of confrontation, but it accurately determined there was, at the time, no definitive holding of this Court in that regard.

-27- #29002

well as her later more definitive testimony in which she denied knowing

Roubideaux and denied having a conversation with Little Long on the date of the

alleged murder. And as we noted in Rodriguez, while the decision to forego cross-

examination may have been strategic, based on our review of the record, we

conclude that Walking Eagle was sufficiently available to satisfy the requirements

of the Confrontation Clause. As such, Little Long has not shown a violation of his

constitutional rights, and the fact that Walking Eagle’s “prior statements were

testimonial matters not.” Id. ¶ 52, 952 N.W.2d at 259 (citing Toohey, 2012 S.D. 51,

¶ 18 n.3, 816 N.W.2d at 129 n.3).

Prejudicial error

[¶49.] When evidence is improperly admitted at trial, reversal may not

always be necessary. To establish reversible error with regards to an evidentiary

ruling, “a defendant must prove not only that the trial court abused its discretion in

admitting the evidence, but also that the admission resulted in prejudice.” State v.

Lassiter, 2005 S.D. 8, ¶ 13, 692 N.W.2d 171, 175 (citation omitted). “Error is

prejudicial when, ‘in all probability . . . [it] produced some effect upon the final

result and affected rights of the party assigning it.’” State v. Packard, 2019 S.D. 61,

¶ 27, 935 N.W.2d 804, 812 (citation omitted) (alteration in original).

[¶50.] While the circuit court erred by permitting the introduction of Little

Long’s statements to Walking Eagle, a review of the record shows that there is no

reasonable probability that the error affected the outcome of the case. While the

admission of Little Long’s statement that he “f***ing killed a man,” was highly

prejudicial, the statement was not the lynchpin of the State’s case by any measure.

-28- #29002

The State presented a strong case against Little Long, which included both direct

and circumstantial evidence that he shot Thornton. This evidence included the

testimony of two eye witnesses to the crime, Roubideaux and Mangor, each of whom

described watching Little Long shoot Thornton in the car.

[¶51.] While Mangor could not identify Little Long at trial, her testimony of

what occurred in the car and the details of the killing she described at trial were

consistent with Roubideaux’s testimony. For instance, both Roubideaux and

Mangor stated that they knew each other from a prior meeting at the Nites Inn,

that Mangor and Thornton were picked up at 4th and Cliff, and that Mangor and

Thornton sat in the back seat of the car. Both agreed that Thornton was paranoid

that night and that an argument started during the drive. According to each

witness’s account, Little Long pulled his gun out twice threatening Thornton. Both

described Little Long shooting Thornton in the chest after the second time he drew

his weapon. Roubideaux testified Mangor started screaming and jumped out of the

moving car. Mangor also recounted her reaction to the shooting, which included

describing her decision to jump out of the car and her efforts to pull Thornton out

with her. She testified that her shoe slipped off and that she left it in the

intersection where the shooting occurred. At trial, Sioux Falls Police Officer Nick

Billing testified that he found Mangor’s shoe in the middle of the road in the spot

she described.

[¶52.] The physical evidence presented to the jury was also substantial.

When law enforcement executed a search warrant on the car, they found red marks

consistent with blood on the back seat, ceiling, floor, and passenger door. DNA

-29- #29002

analysis revealed that Thornton’s blood was found under the molding of the

passenger door. Deputy Toft testified that the car had a strong odor of bleach or

cleaning agents and there were wipe marks present near the red stains. When the

back seats were removed, he noticed that the floor was still wet with cleaning

solution as though the car had just been cleaned. This corroborated Roubideaux’s

testimony that she assisted Little Long with cleaning the car at his girlfriend’s

house after dumping the body.

[¶53.] As part of the investigation, Detective Kuchenreuther testified that he

obtained the cell-phone tower data for September 18 from 12:00–2:00 a.m. from the

three towers closest to the location of Thornton’s body. Officers identified

Roubideaux’s, Little Long’s, and Thornton’s phone numbers and determined that

they were all together at the location where Thornton’s body was found 1.65 miles

from the closest cell tower. Detective Mertes testified that the data revealed that

all three phones were stationary for approximately five minutes at this location.

[¶54.] The coroner’s testimony further bolsters Roubideaux’s and Mangor’s

version of events. While on the stand, Dr. Snell explained that the ridging along

the right side of the gunshot wound in Thornton’s chest suggested that the bullet

traveled from right to left, front to back at a slight up to down angle. This was

consistent with both witnesses’ testimonies that Little Long was seated in the front

passenger seat and had turned around to shoot Thornton, who was sitting in the

backseat on the driver’s side of the car. And although law enforcement did not

recover the murder weapon, they did discover three of Little Long’s fingerprints on

-30- #29002

a can of Rock Star energy drink in the passenger seat door compartment where

Little Long was reported to be sitting.

[¶55.] In sum, the circuit court abused its discretion in admitting the

evidence under Rule 403. However, we conclude the evidence was cumulative to

and independent of the overwhelming evidence that Little Long shot Thornton in

front of two eye witnesses. We, therefore, conclude that while the circuit court erred

in admitting the statements, such error does not require reversal because from our

review of the record, it did not rise to the level of prejudicial error.

II. Whether the circuit court violated Little Long’s right to be brought to trial within 180 days under SDCL 23A-44-5.1.

[¶56.] Little Long does not challenge the circuit court’s findings of fact, which

were incorporated into its memorandum decision, regarding the 180-day calculation

in this case. Nor does he contest that certain delays were properly excludable.

Rather, he focuses his argument upon the claim that the circuit court arbitrarily

tolled the 89 days between the January 2, 2019 and the April 1, 2019 trial dates

without good cause.

[¶57.] We review whether the 180-day period has expired and the existence of

good cause for delay under the de novo standard. State v. Andrews, 2009 S.D. 41, ¶

6 n.1, 767 N.W.2d 181, 183 n.1 (citations omitted). The 180-day rule “creates a right

to disposition of a criminal case within 180 days unless good cause may be shown

for delay.” State v. Sorensen, 1999 S.D. 84, ¶ 12, 597 N.W.2d 682, 684 (citation

omitted). It “is a procedural rule of court and not a constitutional requirement.” Id.

(citation omitted).

-31- #29002

[¶58.] The 180-day period commences when a defendant makes an initial

appearance on a charging document before a judicial officer. Id. ¶ 14, 597 N.W.2d

at 684. Per SDCL 23A-44-5.1, “[c]ertain days are properly excluded from this

calculation, including ‘delay which is occasioned by the defendant’s conduct, such as

delay caused by pretrial motions . . . and defendant’s competency examination . . . .’”

State v. Two Hearts, 2019 S.D. 17, ¶ 10, 925 N.W.2d 503, 509 (citation omitted).

“Additionally, the court may find good cause for delay for other exceptional

circumstances, not specifically enumerated in [SDCL 23A-44-5.1(4)(g)].” Id. ¶ 11,

925 N.W.2d at 509.

[¶59.] The 180-day clock began to run in this case on September 21, 2018,

when Little Long initially appeared before the circuit court on charges that he killed

Thornton. Little Long’s trial commenced 201 days later on April 8, 2019. But even

though more than 180 days had passed between his initial appearance and trial,

certain periods of delay may be properly excludable from the calculation. SDCL

23A-44-5.1(4). See State v. Webb, 539 N.W.2d 92, 95 (S.D. 1995).

[¶60.] Some procedural history is helpful to analyze Little Long’s claim. In

its October 11, 2018 scheduling order, the court imposed a November 21, 2018

motions deadline with a jury trial to begin the week of December 31, 2018. This

date was later moved to January 2, 2019, to accommodate the New Year’s holiday.

On October 24, 2018, Little Long’s attorney filed a motion for psychiatric

examination (competency evaluation) to determine whether Little Long was

competent to stand trial. The court signed an order granting the motion that same

day.

-32- #29002

[¶61.] On November 16, 2018, Little Long emailed the court administrator’s

office, with a copy sent to the State’s Attorney’s office, requesting that a hearing be

scheduled to address his “preliminary motions.” With the involvement and

acquiescence of the parties, court administration set the motions hearing for

January 29, 2019, a new motion deadline for February 8, 2019, and a jury trial to

begin on April 1, 2019. Little Long’s counsel was instructed by court administration

to file a formal motion for delay, but counsel failed to do so.

[¶62.] Little Long’s counsel then moved to withdraw on January 10, 2019 for

a conflict of interest, and the court appointed new counsel. At the January 29, 2019

motions hearing, the parties agreed to move the April 1 trial date to April 8 to

accommodate several witnesses. Because the trial date was now more than 180

days from the date of Little Long’s initial appearance, the State raised the issue of

the 180-day rule. The court set an evidentiary hearing for February 5, 2019 to

determine whether any periods of delay were properly excludable. The court was

also informed at the January 29 hearing that the competency evaluation had not

been completed because Little Long believed he did not need one. After some

discussion with his counsel at the hearing, Little Long agreed to participate in the

competency evaluation before the April 8, 2019 trial date.

[¶63.] Following the February 5, 2019 hearing, the court issued a written

decision excluding two periods of delay from the 180-day calculation—the period

caused by Little Long’s request for a motions hearing date which moved the trial

date to April 1, 2019 and the delay caused by the filing of a motion for a competency

evaluation. Not only did the court find that both delays were excludable for specific

-33- #29002

reasons identified under the statute, it also found, in the alternative, that both

constituted good cause for delay pursuant to the more general provision in SDCL

23A-44-5.1(4)(g).

[¶64.] The changes in scheduling, according to the circuit court, were

functionally equivalent to Little Long requesting a continuance of the trial date

because neither party objected to the new deadlines. SDCL 23A-44-5.1(4)(b)

provides for tolling during “the period of delay resulting from a continuance granted

at the request or with the consent of the defendant or his counsel provided it is

approved by the court and a written order filed.” And although the court

acknowledged that no formal motion was filed or written order issued, the court

faulted Little Long’s counsel for failing to file the motion as directed. It is well-

established that, “where a defendant assents to a period of delay and later attempts

to take advantage of it, courts” loathe “find[ing] a violation of an accused’s speedy

trial rights.” State v. Cottrill, 2003 S.D. 38, ¶ 11, 660 N.W.2d 624, 630. Because the

delay occurred at Little Long’s counsel’s request, the court found that Little Long

consented to the delay between January 2, 2019 and April 1, 2019. Regardless of

whether the court’s ruling falls within the parameters of SDCL 23A-44-5.1(4)(b), it

did not err in concluding that the actions of Little Long, via his counsel, constituted

good cause for excluding this period of delay.

[¶65.] Further, the trial was also delayed as a result of defense counsel’s

October 24, 2018 motion for a competency evaluation. When the circuit court ruled

on the defense’s 180-day motion on February 5, 2019, it noted that Little Long’s

evaluation was still pending. Little Long argues that this period of time cannot be

-34- #29002

used to toll the rule because he told his attorney that he did not wish to be

evaluated and insisted that he was competent to stand trial. Counsel filed the

motion for the evaluation to protect Little Long’s interests because “an incompetent

defendant cannot be legally tried.” See State v. Ceplecha, 2020 S.D. 11, ¶ 36, 940

N.W.2d 682, 693.

[¶66.] The court found that it was “[Little] Long’s prior refusal to cooperate

with the evaluation[,]” and not the State’s actions, that created the delay.

Therefore, even if the request for a pre-trial motions hearing had not delayed the

first trial date, the court concluded that the trial could not have taken place on

January 2, 2019 due to the unresolved competency issue. 14 Competency, the court

noted, is one of the reasons specifically enumerated in SDCL 23A-44-5.1 which is

properly excludable under the 180-day rule. See SDCL 23A-44-5.1(4)(a). This

period of delay is in no way associated with the State and is properly excludable.

[¶67.] In summation, when excluding the periods of delay identified by the

court using either the October 24, 2018 or January 2, 2019 start date through April

1, 2019, it is clear that Little Long’s trial occurred well within the 180-day rule.

The circuit court did not err by so concluding.

III. Whether the circuit court erred by denying Little Long’s motions for judgment of acquittal.

[¶68.] We review a circuit court’s denial of a motion for judgment of acquittal

de novo to determine whether there is sufficient evidence to sustain the conviction.

State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83 (citation omitted). This

14. The record does not indicate the date on which the competency evaluation was completed but it was still pending as of the February 5 hearing.

-35- #29002

standard requires that we ask “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Lawrence v. Weber,

2011 S.D. 19, ¶ 8, 797 N.W.2d 783, 785 (citation omitted). When reviewing the

evidence, we accept the “most favorable inferences fairly drawn therefrom, which

will support the verdict.” State v. Harruff, 2020 S.D. 4, ¶ 15, 939 N.W.2d 20, 25

(citation omitted). “Moreover, ‘the jury is . . . the exclusive judge of the credibility of

the witnesses and the weight of the evidence.’” State v. Johnson, 2009 S.D. 67, ¶ 10,

771 N.W.2d 360, 365 (citation omitted). Accordingly, this Court will not resolve

conflicting evidence, assess the credibility of witnesses, or reevaluate the weight of

the evidence. Id.

[¶69.] A defendant is guilty of second-degree murder if he “perpetrate[s]

. . . any act imminently dangerous to others and evincing a depraved mind, without

regard for human life, although without any premeditated design to effect the death

of any particular person, including an unborn child.” SDCL 22-16-7. Additionally,

the State must prove that the defendant’s conduct established that he was acting

with a depraved mind. State v. Primeaux, 328 N.W.2d 256, 258 (S.D. 1982) (citation

omitted). “This mens rea requirement involves less culpability than the element of

premeditation required for first-degree murder.” Harruff, 2020 S.D. 4, ¶ 39, 939

N.W.2d at 30 (citation omitted).

[¶70.] Because he was acquitted of first-degree murder, Little Long contends

that the “default is not Murder in the Second Degree, it is Manslaughter in the

First Degree” with its lesser mens rea requirement. Little Long emphasizes that

-36- #29002

the State’s theory of the case was that Little Long acted with a premeditated design

to kill Thornton. Because the jury acquitted Little Long of first-degree murder, he

concludes that the evidence was therefore insufficient to prove that he acted with a

“depraved heart.” Little Long argues that he was not waiving or discharging the

gun randomly, so his conduct was “either intentional, premeditated First-Degree

Murder, or it is First-Degree Manslaughter with a deadly weapon.” In support of

this contention, he relies upon authority from other courts involving scenarios that

reflect depravity of heart, such as firing a gun into a crowd. See, e.g., State v.

Brooks, 962 So. 2d 1220 (La. Ct. App. 2007).

[¶71.] We previously rejected similar arguments in State v. Laible, 1999 S.D.

58, 594 N.W.2d 328 and more recently, in State v. Harruff, 2020 S.D. 4, 939 N.W.2d

20. In Laible, we explained that “[i]f a person is able to act with ‘a lack of regard for

the life of another,’ then that person can be convicted of second[-]degree murder.”

1999 S.D. 58, ¶ 13, 594 N.W.2d at 332 (first alteration in original) (citation omitted).

Therefore, unless there is insufficient evidence in the record to support the second-

degree murder conviction, the conviction shall stand even if the jury rejects the

State’s theory that the defendant acted with the premeditation necessary for a first-

degree murder conviction.

[¶72.] In State v. Mulligan, we addressed the question of inconsistent

verdicts where the defendant was acquitted of first-degree murder but convicted of

second-degree murder. 15 2007 S.D. 67, ¶ 11, 736 N.W.2d 808, 814. We held that “a

criminal defendant convicted by a jury on one count cannot attack that conviction

15. We do not hold or suggest that the jury’s verdicts were inconsistent here.

-37- #29002

because it was inconsistent with the jury’s verdict of acquittal on another count.”

Id. (quoting United States v. Powell, 469 U.S. 57, 58, 105 S. Ct. 471, 473, 83 L. Ed.

2d 461, 464 (1984)). Juries are not “required to explain their” verdicts, and

appellate courts, rather than speculating about potential juror error, “should review

the sufficiency of the evidence to support the conviction that was rendered.” Id. ¶¶

11–12, 736 N.W.2d at 814-15 (citing Powell, 469 U.S. at 67, 105 S. Ct. at 478).

[¶73.] With respect to his claim regarding insufficiency of the evidence, Little

Long argues that the jury could not conclude that he had a depraved heart based on

the facts in this record. However, contrary to Little Long’s position, the State

presented ample evidence to support the jury’s verdict convicting Little Long of

second-degree murder.

[¶74.] As we previously noted, two eye witnesses saw Little Long shoot

Thornton, an unarmed man, at close range in the chest. Mangor testified that right

before he died, Thornton told Little Long, “You’re not going to keep on waving that

gun around.” She also testified that Little Long pointed the gun at her head before

threatening Thornton and subsequently pulling the trigger and shooting him. This

type of conduct evinces depravity of mind, which requires the accused to act

“without regard for human life[.]” SDCL 22-16-7. Based upon our review of the

evidence presented at trial, in the light most favorable to the prosecution, there is

sufficient evidence for a jury to find the essential elements of second-degree murder

beyond a reasonable doubt. The circuit court did not err when it denied Little

Long’s motions for judgment of acquittal.

-38- #29002

Conclusion

[¶75.] The circuit court erred when it admitted certain statements for

impeachment purposes, but such error, based on our review of the evidence in the

record, does not rise to the level of prejudicial error requiring reversal. The circuit

court did not err when it concluded the State complied with the 180-day rule.

Finally, sufficient evidence exists within this record to support Little Long’s

convictions.

[¶76.] JENSEN, Chief Justice, and SALTER and DEVANEY, Justices, and

GILBERTSON, Retired Chief Justice, concur.

[¶77.] MYREN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.

-39-