Considered on Briefs: January 12, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE JOSEPH NEILES, Judge.
MARTY J. JACKLEY, Attorney General, KIRSTEN E. JASPER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
MICHAEL G. MILLER, Minnehaha County Public, Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR, Justices and KONENKAMP, Retired Justice, concur. KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, did not participate.
GILBERTSON, Chief Justice
[¶1] Eugene Edward Martin appeals his conviction on one count of first-degree murder and sentence of life without the possibility of parole for the premeditated killing of Robert Thunderhawk. Martin argues that the circuit court erroneously admitted into evidence a recording of a 911 call and allowed two officers to testify about several out-of-court statements made by Martin. Martin also argues that there is insufficient evidence in the record for a jury to have concluded that Martin acted with premeditation. Consequently, Martin asks us to reverse and remand with an order directing the circuit court to enter a judgment of acquittal or schedule a new trial. We affirm.
Facts and Procedural History
[¶2] In May 2012, Martin, who had been homeless for several years, was living at a campsite in a drainage plain located in an undeveloped area of Sioux Falls. Clint Lawrence Cottonwood lived at his own campsite nearby. On the evening of May 2, 2012, Martin, Martin's girlfriend, Cottonwood, and Thunderhawk were drinking and socializing at Martin's campsite. Martin's girlfriend eventually left, and Martin, Thunderhawk, and Cottonwood fell asleep. The drinking resumed after they awoke the next morning.
[¶3] Eventually, Thunderhawk began commenting about Martin's girlfriend's breasts. Martin became angry and attacked Thunderhawk, striking him with his fists. Although Cottonwood averted his eyes from the attack, he heard what he described as a " smack, smack" sound and then eventually " dink, dink, dink." At that time, Cottonwood saw Martin--completely unclothed and wielding a shovel--standing over Thunderhawk. Martin put his clothes back on and sat down in silence. Martin and Cottonwood sat there for some time, continuing to drink beer, until Cottonwood left to buy more. Rather than buy more beer, however, Cottonwood called his friend Kevin Skogstad. Cottonwood relayed the circumstances of the killing to Skogstad, and the two called 911.
[¶4] Police officers arrived at the scene and discovered Thunderhawk's body at Martin's campsite, partially hidden under a tarp. Although Martin was sitting in a chair approximately eight feet away from where the victim lay, Martin claimed not to see the victim's body or the tarp. A shovel with a broken handle was located on the ground next to Martin's chair. The officers arrested Cottonwood and Martin, who were transported to the police station and interviewed by law enforcement officers. While alone in an interview room, Martin appeared to clean his fingernails and legs and said, " I know you are snitching." The following morning, at Martin's campsite, law enforcement located a long-handled shovel--matching a description given by Cottonwood--standing next to a small, freshly dug, trench.
[¶5] A jury convicted Martin of first-degree murder, and the circuit court sentenced Martin to a term of life without the possibility of parole on January 13, 2014. Martin raises two issues in this appeal:
1. Whether Cottonwood's out-of-court statements were inadmissible hearsay that should have been excluded.
2. Whether there was sufficient evidence of premeditation to sustain the jury's guilty verdict for first-degree murder.
Analysis and Decision
[¶6] 1. Whether Cottonwood's out-of-court statements were inadmissible hearsay that should have been excluded.
[¶7] Our review of a circuit court's evidentiary ruling follows a two-step analysis: " first, to determine whether the trial court abused its discretion in making an evidentiary ruling; and second, whether this error was a prejudicial error that 'in all probability' affected the jury's conclusion." Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491. We recently summarized the abuse of discretion standard in Gartner v. Temple:
An abuse of discretion is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable. We do not determine whether we would have made the same decision as the circuit court. Rather, our function in reviewing matters which rest in the discretion of the trial court is to protect litigants from conclusions which exceed the bounds of reason.
2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (citations omitted) (internal quotation marks omitted).
[¶8] Martin argues that the circuit court erred in admitting hearsay evidence in three instances: (1) a recorded 911 call in which Skogstad repeated statements made by Cottonwood, (2) testimony of Officer Stevens stating that Cottonwood told him that Martin " finished [the victim] off with a shovel[,]" and (3) testimony of Detective Olson stating that Cottonwood and Martin discussed how to dispose of the victim's body. " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." SDCL 19-16-1(3) (Rule 801(a) to (c)). Hearsay is generally not admissible. SDCL 19-16-4 (Rule 802). However, " [c]ourts have discretion to allow an ordinarily inadmissible inquiry when an adversary 'opens the door' to that line of inquiry." State v. Buchholtz, 2013 S.D. 96, ¶ 12, 841 N.W.2d 449, 454. In such a case, the party who " 'opens the door' to admission of evidence . . . may not challenge the admission of that evidence." Veith v. O'Brien, 2007 S.D. 88, ¶ 27, 739 N.W.2d 15, 24.
[¶9] Martin first argues that portions of the testimony of Officer Stevens--one of the officers who responded to the 911 call and spoke with Cottonwood at the scene--were inadmissible hearsay. Specifically, Martin objects to the circuit court permitting Officer Stevens to testify that Cottonwood told him that " [Martin] finished [the victim] off with a shovel." An examination of the trial transcript surrounding this statement, however, reveals that Martin's defense counsel opened the door for this testimony. On cross-examination, the following exchange took place between Martin's defense counsel and Officer Stevens:
[Defense Counsel]: Now, when you first came into contact with Cottonwood, he immediately said that he had killed a man and you want to handcuff me?
[Officer Stevens]: Yes.
[Defense Counsel]: Cottonwood described to you he had gotten into an argument with [the victim] and that he punched him once?
[Officer Stevens]: Yes.
[Defense Counsel]: He did not say anything about [Martin] punching [the victim]?
[Officer Stevens]: No.
In response to this questioning, on redirect examination, the following exchange took place between the state's attorney and Officer Stevens:
[State's Attorney]: Now, Officer Stevens, you just were asked on cross-examination that Clint Cottonwood said, I punched him, did he ever tell you what [Martin] did?
[Officer Stevens]: Yes. He said, followed ...