Considered on Briefs November 30, 2015
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA, MEADE COUNTY, SOUTH DAKOTA. THE HONORABLE WARREN G. JOHNSON, Retired Judge, THE HONORABLE JEROME A. ECKRICH, III, Judge.
MARTY J. JACKLEY, Attorney General, GRANT FLYNN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
DAVID L. CLAGGETT, Claggett & Dill, Prof. LLC, Spearfish, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
GILBERTSON, Chief Justice
[¶1] A jury convicted Christopher Lee Chipps of one count of second-degree burglary and four counts of identity theft. Facing a second trial for additional criminal activity, Chipps pleaded guilty to one count of grand theft. He now appeals his jury convictions and sentences imposed for each of the foregoing crimes. Chipps asserts that he did not receive effective assistance of counsel, that his sentences are cruel and unusual, and that there was insufficient evidence to sustain his convictions. We affirm.
Facts and Procedural History
[¶2] David and Charlotte Crisp shared a home as husband and wife in Whitewood, South Dakota. Charlotte was diagnosed with leukemia in 2008 and took several different medications to treat her illness and manage her pain, including Lorazepam,
a controlled substance. On April 25, 2014, shortly after 7:30 p.m., the Crisps were watching television in their bedroom when Charlotte thought she heard a vehicle in their driveway. David investigated but did not see anyone outside.
[¶3] Around 8:00 p.m., Charlotte asked David to bring her one of her medications from their dining room. David discovered that Charlotte's purse, their cell phones, a bottle of Lorazepam, and Charlotte's experimental cancer medications were missing. Further investigation revealed the basement lights were on, the basement door was open, several of David's tools and a work jacket were missing, and the dome light in his vehicle was on. David contacted law enforcement.
[¶4] Lawrence County Sheriff's Deputy Patrick Johnson was dispatched to the Crisps' residence at 8:07 p.m. and arrived within 10 minutes. Deputy Johnson walked through the home and took pictures. Charlotte accessed her bank account online. While Deputy Johnson and Charlotte were discussing the need to cancel her credit and debit cards, unauthorized charges began appearing on her account. One transaction occurred at 8:13 p.m. at Sonset Gas Station, which is located one to one-and-one-half miles from the Crisps' home. Three more transactions occurred at the Walmart in neighboring Spearfish between 8:36 and 8:45 p.m. Deputy Johnson contacted Detective Tavis Little of the Lawrence County Sheriff's Office and alerted him of the possible criminal activity.
[¶5] After speaking with Deputy Johnson, Detective Little immediately traveled to the Spearfish Walmart in order to obtain any available evidence. Walmart employees provided Detective Little with a video recording of the individual who had used Charlotte's card. The recording showed a slender male with short, dark hair and a tattoo on the left side of his neck. The man wore a work jacket like the one David had noticed was missing from his home. The time stamps on the recording corresponded to the time stamps on the receipts from the three transactions involving Charlotte's card.
[¶6] After leaving Walmart, Detective Little contacted Sergeant Barff of the Sturgis Police Department. Detective Little described the appearance of both the individual he witnessed in the Walmart recording and the individual's vehicle. Sergeant Barff told Detective Little that Chipps matched the given description. Additionally, Detective Little learned that Chipps was known by the Sturgis Police Department to drive a white Dodge Stratus.
[¶7] Three days later, Detective Little also obtained a video recording from Sonset's manager showing the individual who had used Charlotte's card at the station. The recording showed a slender male with short, black hair--like the individual shown in the Walmart recording--enter Sonset at 8:02 p.m. After leaving the store, the same individual later returned in a white Dodge sedan, the same style of vehicle that Detective Little associated with the individual he saw in the Walmart recording. A portion of the vehicle's license plate was legible. After exiting the vehicle,
the individual put on a work jacket of the same style worn by the individual shown in the Walmart recording. After several attempts, the individual successfully used Charlotte's card to pay for fuel. As with the Walmart transactions, the time stamps on the Sonset recording corresponded to the time stamps on the receipts involving Charlotte's card.
[¶8] On April 30, Detective Little uncovered additional evidence. After searching for Chipps's name in an online registry of pawn-shop transactions, Detective Little learned that Chipps had pawned a gold ring at First National Pawn in Rapid City. The ring closely matched the description of a ring Charlotte reported missing after the burglary. Detective Little also learned that Chipps had pawned a pendant. After seeing pictures of the pawned jewelry, Charlotte confirmed they belonged to her. Although the pawn shop was unable to make a copy of its video recording, Detective Little was able to view the recording of the transaction in which Chipps sold Charlotte's ring.
[¶9] Later that day, Detective Little travelled to Chipps's girlfriend's home in Blackhawk. Upon arriving, Detective Little noticed that the vehicle parked at the residence was the same vehicle he had observed in the Walmart and Sonset recordings. The vehicle's license plate matched the portion of the license plate visible in the video recordings. Chipps was present in the home, and Detective Little recognized him as the individual shown in the recordings from Walmart, Sonset, and First National Pawn. Chipps had a tattoo in the same spot as the individual shown in the recordings. Meade County sheriff's deputies arrested Chipps, and Detective Little recovered Charlotte's cell phone from the residence.
[¶10] On April 18, 2014--one week before Chipps burglarized the Crisps' home--Chipps had interviewed for potential employment with Justin Sherwood. Shortly after the interview, Sherwood noticed that the keys to his vehicle were missing. Sherwood reported the vehicle missing on June 26. The next day--and after Chipps had been released on bond pending trial for the events surrounding the Crisp burglary--Sturgis Police Officer Tyrone Lee noticed a vehicle matching the description of the one Sherwood reported stolen. As Officer Lee approached the vehicle, Chipps stepped out of the driver's door. A check of the vehicle's identification number revealed that the vehicle was in fact the one reported stolen by Sherwood. Meade County law enforcement took Chipps into custody for a second time.
[¶11] Chipps was indicted in Lawrence County on May 22, 2014, with one count of second-degree burglary in violation of SDCL 22-32-3, one count of grand theft (more than $2,500 but less than $5,000) in violation of SDCL 22-30A-1 and -17, one count of obtaining possession of a controlled substance by theft in violation of SDCL 22-42-8, and four counts of identity theft in violation of SDCL 22-40-8. The State also filed a habitual-criminal information alleging Chipps had previously been convicted of two felonies. On July 9, before trial had commenced in Lawrence County, Chipps was indicted in Meade County with one count of grand theft in violation of SDCL 22-30A-1, -7, and -17 and possession of marijuana (two ounces or less) in violation of SDCL 22-42-6. The State also filed a habitual-criminal information with the Meade County indictment.
[¶12] After Chipps was indicted in Lawrence County, his attorney at the time arranged for him to undergo a forensic psychological evaluation for the purpose of determining whether Chipps fit the statutory definition of " mentally ill" at the time
of the alleged crimes. Dewey J. Ertz, Ed. D., conducted the evaluation and issued a report on July 21, 2014. The report stated:
It is my opinion that [Chipps] meets the current definition of mental illness described in South Dakota law. He has substantial psychiatric disorders which involve thought, mood, and behavior. These disorders were present during the commission of the alleged crimes noted above and frequently impair [his] judgment. His impairments did not prevent him from knowing the wrongfulness of his acts and they are presented in various ways and various settings beyond repeated criminal behavior or antisocial conduct. This opinion is stated within a reasonable degree of psychological certainty.
Dr. Ertz recommended that " [l]ong-term supervision and constraints on [Chipps's] activities represent the most effective way of assisting [Chipps] to reduce the potential to be harmful to himself and to protect others from [Chipps] becoming harmful to them."
[¶13] On September 18, 2014, after a two-day trial, a jury convicted Chipps of second-degree burglary and all four counts of identity theft. Chipps did not present a mental-illness defense. Chipps admitted to prior convictions for grand theft in 2002 (Class 4 felony) and possession of a controlled substance in 2005 (Class 4 felony). The Lawrence County court sentenced Chipps to 20 years imprisonment for the burglary conviction and 5 years for each identity-theft conviction. Although each identity-theft sentence runs concurrently with the others, they run consecutively with the burglary sentence. Chipps filed a notice of appeal regarding these convictions and sentences on December 19.
[¶14] On the same day that Chipps filed his first appeal, he underwent a forensic psychiatric evaluation by Stephen Manlove, M.D. Dr. Manlove concluded: " It is my opinion with reasonable medical certainty that [Chipps] was mentally ill at the time of the crimes he has been convicted of." Based on this and Dr. Ertz's earlier report, Chipps pleaded guilty but mentally ill on January 29, 2015, to the grand theft charged in the Meade County indictment. Under a plea agreement, the State dismissed the remaining charges as well as the habitual-criminal information. Chipps was sentenced to eight years imprisonment, with two years suspended, and fined $10,000. This sentence runs consecutively with the Lawrence County sentences. Chipps filed a notice of appeal regarding this sentence on March 19.
[¶15] In this consolidated appeal, Chipps raises three issues:
1. Whether the assistance rendered by Chipps's trial attorney was so ineffective that reversal on direct appeal is warranted.
2. Whether Chipps's sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment.
3. Whether the circuit court erred by denying Chipps's motion for judgment of acquittal.
Analysis and Decision
1. Whether the assistance rendered by Chipps's trial attorney was so ineffective that reversal on direct ...