APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JOHN J. DELANEY Retired Circuit Judge
The opinion of the court was delivered by: Zinter, Justice
[¶1.] John Graham was convicted of felony murder. He appeals, contending that: he was tried on the felony murder charge in violation of the specialty doctrine of federal extradition law; the circuit court erred in admitting hearsay; there was insufficient evidence to support the conviction; and, his life sentence without parole was unauthorized by statute and was unconstitutional under the Eighth Amendment. We affirm.
Facts and Procedural History
[¶2.] In February 1976, Anna Mae Aquash's body was found at the bottom of a bluff in a remote area of the Badlands near Highway 73 between Kadoka and Wanblee. An autopsy indicated that she died from a single bullet wound to the head.
[¶3.] In 2003, John Graham, a Canadian citizen, was charged in federal court with the premeditated murder of Aquash. In 2007, Graham was extradited to the United States from Canada on that charge. After protracted litigation in the federal courts, the federal premeditated murder charge was dismissed. See United States v. Graham, 572 F.3d 954 (8th Cir. 2009). However, before Graham could return to Canada, he was indicted by a Pennington County grand jury on state charges of premeditated murder and felony murder.*fn1 The underlying felony was alleged to be the kidnapping of Aquash.
[¶4.] The State's theory of the case was that Aquash was kidnapped and murdered because leaders and members of the American Indian Movement (AIM) believed she was a federal government informant. In the 1970s, Aquash had been actively involved in AIM. In the summer of 1975, Aquash was arrested with several AIM leaders on federal charges involving the possession of explosives on the Rosebud Sioux Indian Reservation. Aquash was charged in federal court and released from custody. In October 1975, Aquash, along with other AIM members and leaders, traveled to Washington in a motor home. After spending some time in Washington, the group traveled to Oregon. While traveling in Oregon in November, the occupants of the motor home were involved in a shoot-out with the Oregon Highway Patrol. Aquash was arrested on additional charges and was returned to South Dakota to face the prior federal charges. Aquash was released again on the South Dakota federal charges, and she fled to Denver around November 25, 1975.
[¶5.] The State presented evidence that a few days after Aquash arrived in Denver, AIM leaders ordered Aquash to be taken to Rapid City to face the allegation that she was an informant for the government. Witnesses testified that Aquash's hands were tied, and she was forcibly taken to Rapid City by AIM members Graham, Arlo Looking Cloud, and Theda Clarke. There was also evidence that this group eventually obtained a gun, took Aquash to a bluff in the Badlands, and Graham shot her.
[¶6.] Over defense objections, the State introduced out-of-court statements to prove its theory of the case. The circuit court allowed Looking Cloud and Denise Maloney (Aquash's daughter) to testify to the contents of a telephone call Looking Cloud made to Maloney in 2002 regarding the shooting. Looking Cloud testified he "told [Maloney] that John Boy [Graham] shot [Aquash] and there was Theda [Clarke] and I, and I was sorry." Maloney confirmed Looking Cloud's call. Maloney testified that during the call, Looking Cloud told her "that [Looking Cloud] was told to stay at the car. And that John Boy [Graham] and Theda and [Aquash] went up over a hill. [Looking Cloud] heard a gunshot. And John Boy [Graham] and Theda came back without [Aquash]."
[¶7.] The State also introduced out-of-court statements through Troy Lynn Yellow Wood relating to Aquash's status as an informant and AIM leaders' motivation to kill her. The statements were made in a 1975 encounter in Farmington, New Mexico between Aquash and AIM leader Leonard Peltier. Yellow Wood testified that Aquash told Yellow Wood that during that meeting, Peltier held a gun to Aquash's head while Peltier made statements accusing Aquash of being an informant.*fn2
[¶8.] The last out-of-court statements at issue were introduced through Darlene "Kamook" Nichols Ecoffey. The statements related to AIM leaders' motivation to have Aquash killed. Ecoffey was in the motor home with Peltier and Aquash when they traveled to Washington in October 1975. Ecoffey indicated that during that trip, Peltier made a self-incriminatory statement in the presence of Aquash. Ecoffey testified that Peltier bragged to the occupants of the motor home that he had shot and killed an FBI agent on the Pine Ridge Indian Reservation while the agent was begging for his life.*fn3
[¶9.] Graham was found guilty of felony murder, but was acquitted of premeditated murder. He was sentenced to life in prison without parole. Graham raises the following issues on appeal:
1. Whether the doctrine of specialty, arising under an extradition treaty with Canada, deprived the State of jurisdiction to try Graham on the state felony murder charge when he had been extradited to the United States on the federal charge of premeditated murder.
2. Whether the circuit court erred in allowing Looking Cloud's and Maloney's testimony restating Looking Cloud's 2002 telephonic statement to Maloney.
3. Whether the circuit court erred in allowing Yellow Wood's testimony that Aquash said that Peltier made a statement accusing Aquash of being an informant.
4. Whether the circuit court erred in allowing Ecoffey's testimony that Peltier, in the presence of Aquash, made a self-incriminatory statement admitting that he killed an FBI agent.
5. Whether there was sufficient evidence to convict Graham of felony murder.
6. Whether Graham's sentence of life imprisonment without parole was authorized by statute, and whether the sentence was cruel and unusual ...