APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE COUNTY, SOUTH DAKOTA HONORABLE JOHN W. BASTIAN Judge.
The opinion of the court was delivered by: Zinter, Justice
ARGUED ON AUGUST 25, 2010
[¶1.] Jamie Corean was convicted of accessory to murder and aiding and abetting aggravated kidnapping. After the conviction but before we considered her appeal, the principal in the murder and kidnapping provided testimony claiming that Corean had no knowledge of or involvement in the offenses. As a result of the new evidence, we remanded the matter to the circuit court for supplementation of the record, further discovery, and consideration of a motion for new trial. Following an evidentiary hearing, the circuit court denied relief. The court found that the new evidence would not have produced an acquittal or changed the outcome of the trial because the principal's testimony was irrelevant, biased, not reasonable, and lacked credibility. Corean now appeals the denial of her renewed motion for new trial and motion for judgment of acquittal. She also argues that the circuit court erred in: admitting co-conspirator statements; instructing the jury; finding that there was sufficient evidence to support the convictions; and, in imposing a mandatory life sentence. We affirm.
Facts and Procedural History
[¶2.] On Monday, July 12, 2004, Troy Klug and Robert Highley went to Cynthia Kindall's home in Rapid City to acquire methamphetamine. Duana Beebe, Klug's girlfriend, testified that Klug wanted "to get [the] drugs as a front"*fn1 so he could repay a drug debt to Kindall. Kindall was also Beebe's drug supplier. The record reflects that Tory Tiegen was present, he had been residing in Kindall's house, and Klug's proposed drug purchase was part of an ongoing course of illegal drug trafficking at this house involving both Tiegen and Kindall.
[¶3.] When Highley and Klug arrived, they met Kindall and Tiegen. Highley was asked to leave, and he left in Klug's vehicle. Kindall left shortly thereafter. When Kindall returned she observed that Klug was alive, but Tiegen had bound Klug with duct tape. Kindall and Tiegen loaded Klug into the trunk of Kindall's car (a black Nissan) and left.
[¶4.] Tiegen and Kindall arrived at Beebe's house that Monday evening around 9:00 p.m. Beebe asked Kindall where Klug was, and Kindall responded that she had kicked Klug out of her house. Beebe asked Kindall and Tiegen to leave.
[¶5.] Jason Kusick testified that Tiegen arrived at Kusick and Corean's house ("Corean's house") in Belle Fourche on Tuesday morning, July 13, between 6:00 and 7:00 a.m. Tiegen drove Kindall's car into the garage, and once inside, Tiegen opened the trunk. Klug was in the trunk and was bound with duct tape. According to Kusick, Klug "couldn't see, his arms were duct taped, his legs were duct taped." Tiegen pulled Klug out of the trunk and "threw him on the floor." Tiegen indicated that Klug was "a rat, a snitch." Tiegen then kicked Klug in the stomach, and Kusick "heard [Klug] moan." When Kusick went back inside the house, he told Corean that Tiegen "had somebody with him." Corean did not suggest that they should intervene.
[¶6.] Tiegen testified that he put Klug in a tool box in the garage at Corean's house that morning. Kusick testified that he "wanted nothing to do with" the situation, and he left for work. Corean indicated in prior testimony from Tiegen's trial that after she went to work, she returned to see if Tiegen was gone.*fn2 When she saw that Tiegen was gone, she locked the garage.
[¶7.] On the way home from work that afternoon, Kusick told Eric Haar that Tiegen had left Klug at Corean's house. Kusick asked Haar to check the tool box in the garage. Kusick testified that Haar opened the tool box, and Kusick "was standing by the door and [he] could see somebody in it." Kusick testified that when Corean arrived home after work that afternoon, "I remember us telling her that [Tiegen] left this guy here and he's still here." According to Kusick, Corean did not suggest that someone should check on Klug's well-being.
[¶8.] Abby DeJong, Corean's best friend, testified that she arrived at Corean's house on Tuesday, July 13, around 6:30 p.m. Corean told DeJong that Tiegen had put a person in a box in her garage. DeJong testified that Corean also told her that the person was being "held against [his] will." When DeJong told Corean, "I think we need to do something," Corean responded: "No, the cops will get them." When DeJong attempted to convince Corean to call the police, Corean told her: "No, you're not going to." When DeJong told Corean that if DeJong were in the tool box, she "would want someone to help me," Corean again replied: "No, the cops will get them."
[¶9.] Tiegen and Kindall returned to Corean's house late Tuesday evening. DeJong testified that when Tiegen and Kindall arrived, they had drugs with them and everyone -- Tiegen, Kindall, Haar, DeJong, and Corean -- began using methamphetamine. According to DeJong, she asked Tiegen in Corean's presence why Tiegen was keeping Klug in the tool box. DeJong testified that Kindall spoke up and stated "that Klug had owed them money." Tiegen and Kusick went for a ride later that evening, and when they returned to Corean's house, Corean, DeJong, Haar, and Kindall were still together in the living room using drugs. Before going to bed that evening, Kusick saw Tiegen and Corean talking together in the kitchen.
[¶10.] Tell Cook also lived in Belle Fourche. He testified that Tiegen and Kindall arrived at his house around 2:00 a.m. on Wednesday morning, July 14.*fn3
According to Cook, Tiegen took Cook outside to Kindall's vehicle and showed Cook that Klug was in the trunk. Klug's hands, feet, and head were bound with duct tape, and he was lying face down in the trunk. Cook testified that Klug was still alive because he heard Klug moan and saw him reflex when Tiegen punched him in the back. Tiegen told Cook that he was either going to drive to Denver to turn Klug into Klug's parole agent, or he was going to drive to North Dakota and dig a hole to bury Klug.
[¶11.] Tiegen and Kindall returned to Corean's house around 5:30 a.m. Wednesday morning. Kusick testified that later that morning Tiegen told Kusick that Tiegen had "woke [Klug] up" and that Tiegen was leaving. Haar testified that he "remember[ed] asking [Kusick later], you know, what happened, was [Klug] okay or what's up and [Kusick] said that [Tiegen] told him that it took a while to get [Klug] up, but he got him up."*fn4 Before Tiegen left, he instructed Kusick to "wash the [tool] box out." Kusick washed the tool box at a car wash but there was "absolutely nothing" inside the tool box to wash. According to Kusick, "It had already been cleaned."
[¶12.] On Wednesday evening, Kusick and Corean were at their house with DeJong and Haar. According to Kusick, he "wanted to tell the cops," but "[w]e had a conversation that none of us would ever talk about it, we'd never say anything." Kusick also remembered "hearing [Corean] say we need an alibi." DeJong testified that when she talked to Corean on Wednesday, Corean informed DeJong that Tiegen was concerned about whether he could trust DeJong. According to DeJong, Corean reassured Tiegen not to worry about DeJong, and that Corean would "take care of it."
[¶13.] Tiegen returned to Cook's house the following morning, Thursday, July 15. Tiegen told Cook that Tiegen had put Klug in the tool box, and that Tiegen had left Klug there all day. When Cook asked Tiegen if he had given Klug any water, Tiegen replied: "No, I didn't give him any water, too late for that anyway." Cook testified that Tiegen boasted that he went to the tool box several times during the day just to beat Klug. He told Cook that he felt the bones crush in Klug's face and "that's what probably did him in[.]"
[¶14.] Kindall and Tiegen left Belle Fourche for Montana on Thursday, July 15. Kindall indicated that at that time, Klug was dead and still in the trunk of her car. Once in Montana, they drove into a canyon where Tiegen buried Klug by a fallen tree.
[¶15.] Tiegen was convicted of Klug's kidnapping, and on January 16, 2008, this Court affirmed the conviction in State v. Tiegen , 2008 S.D. 6, 744 N.W.2d 578. On November 18, 2008, Tiegen was indicted for the first-degree murder of Klug. Following plea negotiations, Tiegen pleaded guilty to first-degree murder. Before his guilty plea, he had been subpoenaed to testify at Corean's trial, but he exercised his Fifth Amendment right to remain silent. Corean was subsequently convicted of accessory to murder in violation of SDCL 22-3-5 and aiding and abetting aggravated kidnapping in violation of SDCL §§ 22-19-1(2) and 22-3-3. Following Corean's conviction and appeal to this Court, she moved for a judgment of acquittal or new trial based on newly obtained testimony Tiegen would then provide following his plea. We remanded the matter for the circuit court's consideration.
[¶16.] The circuit court conducted a hearing in which Tiegen testified. Tiegen claimed that Corean "never indicated" knowledge of the kidnapping. Tiegen also suggested that Klug was dead by the time Corean learned about Klug. Tiegen's credibility was, however, attacked by showing bias in favor of Corean.*fn5 Tiegen further acknowledged that Corean was home when Tiegen showed Kusick that Klug was in the trunk of the car. Tiegen finally acknowledged that he did not know if Corean went inside the garage at any time on Tuesday.
[¶17.] At the conclusion of the hearing, the circuit court denied Corean's motions for judgment of acquittal and new trial. The court found that Tiegen's testimony was biased and lacked credibility, and that it was merely cumulative and impeaching. The court ultimately found that Tiegen's evidence was insufficient to have produced an acquittal or changed the outcome of the trial.
I. Whether Tiegen's post-trial testimony requires a new trial.
[¶18.] Corean argues that the circuit court erred in denying a new trial because Tiegen's testimony was "highly reliable" and it "undermined confidence in the outcome of her trial." "To succeed on a motion for a new trial based on after-discovered evidence, a defendant must prove that '(1) the evidence was undiscovered by the movant at the time of trial; (2) the evidence is material, not merely cumulative or impeaching; (3) that it would probably produce an acquittal; and (4) that no lack of diligence caused the movant to fail to discover the evidence earlier.'" State v. Shepard , 2009 S.D. 50, ¶ 20, 768 N.W.2d 162, 167 (quoting State v. Reyes , 2005 S.D. 46, ¶ 28, 695 N.W.2d 245, 255). "[N]ew trial motions based on newly discovered evidence request extraordinary relief; they should be granted only in exceptional circumstances and then only if the requirements are strictly met." State v. Gehm, 1999 S.D. 82, ¶ 15, 600 N.W.2d 535, 540. "Whether a new trial motion should be granted is left to the sound discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion." Id.
[¶19.] There is no dispute that Tiegen's testimony was not available and was undiscoverable by Corean at the time of trial. The circuit court, however, denied a new trial on requirements (2) and (3), finding that Tiegen's testimony was merely cumulative and impeaching, and that the evidence was insufficient to probably have produced an acquittal. We agree with the circuit court. Corean does not dispute the following findings indicating that Tiegen's testimony was merely cumulative and impeaching:
* Tiegen confirmed that he first went to the Corean residence on the morning of July 13, 2004. This fact was confirmed by Kusick and the testimony of DCI agent Brent Gromer who testified that Corean admitted that this had occurred.
* Tiegen confirmed the testimony of James Kusick that Tiegen had displayed Troy Klug to Kusick in Corean's garage on Tuesday morning and that Corean was present in the residence at this time.
* Tiegen confirmed that Troy Klug was alive on the morning of July 13, 2004, and that even later in the morning Troy Klug would have been well enough to walk away.
* Tiegen confirmed that after Kusick observed Troy Klug in the garage, Kusick left the garage and had a conversation with Corean.
* Tiegen testified that he left Troy Klug alive in Corean's garage on the morning of July 13, 2004, after Kusick and Corean left for work.
* Kusick testified that on the morning of July 13, 2004, he told Corean that Tiegen had someone that he was holding in the garage.
* Tiegen's testimony had no impact on the issue of Corean's knowledge of Troy Klug's presence in her garage at a time when Troy Klug was alive and at a time when Corean had an opportunity to intervene on Troy's behalf; the jury heard the evidence that Corean chose to provide a place for Tiegen to hold Troy Klug.
[¶20.] The court also found that Corean's friends' testimony confirmed Corean's knowledge of Klug's confinement in her garage. The court noted: "DeJong and Haar testified that on Tuesday between 6:00 and 7:00 p.m., a conversation occurred on the porch of the Kusick/Corean residence and that Haar, DeJong and Corean discussed the presence of a person in a box in the Kusick/Corean garage." The court further noted that "DeJong testified that she told Corean more than one time that they should try to help the person being held in the garage and Corean refused." Finally, the court noted, "[w]hen Corean returned home on Tuesday, Kusick testified that he spoke with her and told her that there was still someone being held in the garage." In light of all evidence, we agree with the circuit court that Tiegen's testimony was merely cumulative, it tended to impeach other witnesses, and it would not have affected the outcome of the trial.
[¶21.] Corean, however, emphasizes that Tiegen testified that Klug was dead by 3:00 p.m. on Tuesday, July 13. Corean argues that because Klug "was dead prior to [her] knowledge [of the kidnapping], Corean obviously [can] not be guilty of any kidnapping or murder charge." Corean contends that Finding # 40 -- in which the circuit court found that Tiegen's testimony ...