APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE GLEN A. SEVERSON Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON FEBRUARY 17, 2009
[¶1.] Orlando Tibbs Fool Bull (Orlando) was tried along with Jade Jarvis Fool Bull (Jade) and Willard Nolan Makes Room For Them (Willard) (Defendants collectively) on three counts of Burglary in the First Degree -- Inflict Injury on Another and one count of Burglary in the First Degree -- Committed in Night Time. The jury found Orlando guilty on all charges. Orlando appeals. We affirm.
[¶2.] At 3:24 a.m. on May 19, 2007, Sioux Falls Police Department Metro Communication received a telephone call from a female caller alerting police to a disturbance in progress at 614 South 2nd Avenue, Apartment 3 in Sioux Falls, South Dakota. At 3:26 a.m., Sergeant David McIntyre received a dispatch for a burglary in progress at the same location and arrived at the scene within minutes. Upon his arrival, Sergeant McIntyre saw a male wearing white shorts and a white shirt running from the structure in which Apartment 3 was located. As Sergeant McIntyre approached the house on foot, another male walked from behind the house and into view.
[¶3.] Officers on the scene located the male in the white shorts and white shirt hiding in nearby bushes. This individual was identified as Edward Cottier (Ed), a resident of the apartment in question. Ed had a bloody nose and looked to have been hit in the face several times.
[¶4.] Officer Bruxvoort found William Cottier (Billy), Ed's brother, inside the apartment. Billy was sitting on the living room floor and appeared to be injured. He was having difficulty talking and breathing due to pain in his ribs.
[¶5.] Officer Bruxvoort interviewed Billy and was told that Billy and his girlfriend Amanda Armijo (Amanda) had come over to Ed's apartment for the evening. Amanda invited two female friends, Shawna Peasley (Shawna) and fifteen year old J.P. to the gathering. Shawna and J.P. arrived around 12:30 a.m. At approximately 1 a.m., Ed and Billy's younger sister L.B.B. arrived with her boyfriend, Jade. The young people were with Ed who was watching his infant son while his girlfriend was at work. Billy then told Officer Bruxvoort that L.B.B. felt ill and went into the bedroom to lie down. While she was out of the room, Jade began kissing and making advances toward J.P.
[¶6.] Billy and Ed confronted Jade and told him to go and be with their sister or leave. Jade became defiant, and told the Cottier brothers that he was a Fool Bull, that he had his "homies a block away," and that "all he needed to do was make a phone call." Jade and Billy almost came to blows. Ed broke the tension and Jade eventually left the apartment.
[¶7.] At around 3 a.m., Shawna, J.P., Billy, and Amanda decided to stay the night and found places to lie down to watch a movie or sleep. Billy and Amanda were on the couch, and Ed was in a recliner. The occupants woke to the sound of the backdoor being forced open and breaking glass. Three men and one woman charged into the apartment. Billy identified the intruders as Jade, Orlando, Willard, and Joyce Ross (Joyce), Orlando's girlfriend.
[¶8.] What ensued next was contested at trial, and the stories of the respective witnesses did not agree completely internally or with each other. In addition, the details of the stories changed from the time statements were given to police to the time of trial. All the occupants agreed, however, that Joyce, Jade, Orlando, and Willard rushed into the apartment.
[¶9.] Willard punched Ed in the mouth as Ed was trying to get out of his recliner. Willard continued to punch Ed until Ed was knocked to the floor. Orlando punched Billy knocking him to the floor. Willard and Orlando lifted a glass table top and dropped it on Billy. Jade yelled to Orlando to "Fuck him up. Fuck him up" during the assault on Billy.
[¶10.] While Ed and Billy were being assaulted, Amanda tried to grab her cell phone to dial 911. Jade knocked the phone from her hand, and when Amanda tried to pick it up Joyce knocked it out of her hand. Joyce then said "We got to go. We don't want to catch a murder rap."
[¶11.] In the meantime, Amanda was finally able to dial the police. She told police four men and a woman had invaded the home. As Amanda made the call, the intruders started leaving. As the intruders were leaving, Jade got into L.B.B.'s face and said "I wasn't here and you didn't see me here." Jade also tried to get L.B.B. to leave with him, but she was unwilling.
[¶12.] Police interviews with L.B.B. and Ed were videotaped at the scene by the patrol car onboard cameras. L.B.B. was taken to juvenile lockup after her interview, as she was a minor and had run away from her mother's home three weeks prior. L.B.B. had been staying with Jade at the homes of friends and family during the three weeks she was on the run. L.B.B. was also administered a Portable Breath Test (PBT). The results of that PBT were documented in L.B.B.'s CHINS (Child in Need of Services) file, but not the police report for the home invasion and assaults.
[¶13.] The State elected to try three of the defendants, Jade, Orlando, and Willard together. Joyce's trial was severed. At a pretrial motion hearing, the State indicated that it intended to elicit testimony that one or more of the defendants made the following comments: "My homies are a block away" and "I'm a Fool Bull," both allegedly made by Jade to Ed when Ed confronted Jade about his conduct towards J.P. The State also gave notice it intended to elicit testimony that Jade had said "Fuck him up. Fuck him up," to Orlando while Orlando was assaulting Billy. The State also intended to elicit Joyce's statement "The police are coming," and "You don't want to catch a murder rap," made to all of the assailants after Amanda was able to dial her cell phone.
[¶14.] Trial on the matter was originally scheduled for Monday, September 24, 2007. The morning of trial, the deputy state's attorney informed the trial court that he had discovered at 10:00 p.m. the night before that three or four videotapes made by officers at the scene were not identified in police reports, and had not been provided to the defense. Orlando's motion to dismiss for prosecutorial misconduct was denied. The trial court directed the prosecution to turn over the tapes, and for Orlando's counsel to review them prior to the start of trial on Wednesday, September 26, 2007. Jury selection was held on Monday, September 24, 2007. The jury was sworn, and told to return on Wednesday, September 26, 2007.
[¶15.] A hearing on the undisclosed videotapes was held on Tuesday, September 25, 2007, at which time Orlando again moved to dismiss for prosecutorial misconduct. Defense counsel could not state with certainty whether the tapes contained exculpatory evidence. Due to the less than twenty-four hours counsel had to review the tapes, the best assessment was that the evidence was potentially exculpatory. The trial court denied the motion to dismiss, but granted Orlando's motion for mistrial after it expressed its frustration with the prosecution over its untimely discovery of the videotapes.
[¶16.] The trial was rescheduled for November 11, 2007. At the commencement of trial, the state's attorney provided the defense with a report not previously disclosed. The report concerned L.B.B. and contained the results of her PBT, which was zero.
[¶17.] Orlando again moved for mistrial based on prosecutorial misconduct. The defense conceded it knew that a PBT test had been administered to L.B.B. The prosecution disclosed that the test results had been included in L.B.B.'s CHINS case report but was not included in the criminal investigation file. The report was discovered by the prosecution after Willard's defense counsel inquired further and L.B.B.'s CHINS file was accessed to see if the results were contained in that file. However, counsel for all three defendants had been fully aware for months that L.B.B. had been given a PBT, that she had been taken to the juvenile detention center, and that CHINS proceedings had taken place.
[¶18.] The trial court reviewed the matter. The State argued that the failure to disclose was inadvertent, and that the evidence was not exculpatory in nature. The State also argued that Defendants had been aware that the PBT had been administered prior to the date of the first trial. Orlando's counsel conceded that the evidence "did not fundamentally change the nature of the defense," and "would be more towards cross-examination and another inconsistency in the State's case." The trial court found, after balancing the interests involved, that dismissal was not warranted. The trial court "excluded[d] the State from using that information on direct examination."
[¶19.] During voir dire, Orlando's counsel was precluded from addressing the issue of a hung jury. Orlando's counsel made an offer, on the record and outside the presence of the jury, of the proposed hung jury question:
The question is that law does not -- the statement is the law does not require that you have to arrive at a verdict. The law requires that you made a good faith effort to do so. If, after a prolonged deliberation, one or more of you still have an abiding belief that the verdict should go one way and one or more of you have the same exact strongly held belief it should go the other, you all do your duty by deciding not to decide. We call that type of situation a hung jury and there is no disgrace in that. Our law makes the provision for cases where there must be a good faith inability to all agree on a verdict and that a jury trial is not a group where majority rules and the question is -- is everyone comfortable with that.
[¶20.] At the close of the State's case, Orlando made a motion for judgment of acquittal. The motion was denied by the trial court. The matter was submitted to the jury.
[¶21.] Orlando was found guilty on three counts of Burglary in the First Degree -- Inflict Injury on Another (SDCL 22-32-1(1) and one count of Burglary in the First Degree -- Committed in Night Time (SDCL 22-32-1(3). Orlando pleaded guilty to a Part II Habitual Criminal Information (SDCL 22-7-7) based on two prior felony convictions from 2004. He was sentenced to forty years for each offense with twenty years suspended on each count subject to ...