Considered on Briefs on November 30, 2015
Appeal From The Circuit Court of the Seventh Judicial Circuit Pennington County, South Dakota the Honorable Jeff W. Davis Judge
Marty J. Jackley Attorney General Kelly Marnette Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
Eric D. Whitcher of Pennington County Public Defender's Office Rapid City, South Dakota Attorneys for defendant and appellant.
GILBERTSON, Chief Justice
[¶1.] Steven Pursley appeals his jury conviction for simple assault. According to Pursley, prosecutor misconduct occurred during the State's closing argument and its cross-examination of Pursley, depriving him of his rights to an attorney and due process. We affirm.
Facts and Procedural History
[¶2.] On Friday, November 2, 2012, Jeffrey Patterson and Caleb Fousek visited the Belle Star Gentleman's Club in Box Elder, South Dakota, where they were later joined by their friend James Thompson. Shortly after Thompson arrived, he and Patterson decided to step outside to smoke cigarettes. Crystal Sandoval, who is Defendant's sister, was outside. Patterson began flirting with Sandoval but ceased after an exchange of words with some third person.
[¶3.] After Patterson stopped talking to Sandoval, Pursley exited the Belle Star. Pursley did not speak to Patterson; instead, Pursley used his fist to strike Patterson on the left side of his head. Patterson fell to the ground unconscious, and Pursley walked back into the bar. Patterson suffered a bruise on the left side of his brain and was not released from the hospital until the following Monday. Following the attack, Patterson has suffered from headaches and short-term memory loss. [¶4.] Fousek exited the bar in search of his friends and broke up a fight between Sandoval and another woman. Pursley again exited the bar, and Thompson identified Pursley to Fousek as the individual who knocked out Patterson. Fousek attacked Pursley, who responded by striking Fousek with his fist, knocking him to the ground. Pursley struck Fousek a second time before being restrained by bystanders. Pursley eventually went back into the Belle Star. [¶5.] The Box Elder Police Department was notified of the assault around 2:00 a.m. on November 3, 2012. Although an officer spoke with Fousek and several other people at the Belle Star, nobody positively identified Pursley as the attacker. No arrest was made at that time, but the officer requested surveillance footage from outside the bar.
[¶6.] Patterson and Thompson returned to the Belle Star on November 30, 2012. As they were parking, Thompson saw Pursley and recognized him as the individual who had attacked Patterson earlier in the month. Thompson called the police. Box Elder Police Officer Joshua Campbell and another officer responded to the Belle Star. After an officer spoke with Patterson and Thompson, Officer Campbell accompanied Thompson inside the bar. Thompson identified Pursley, and Officer Campbell asked Pursley to exit the bar. After they exited the bar, Officer Campbell asked Pursley about the incident that occurred at the Belle Star in the morning hours of November 3. Pursley denied any involvement. Even so, Officer Campbell arrested Pursley for the November 3 incident.
[¶7.] On December 12, 2012, Pursley was charged with assaulting both Patterson and Fousek, and a jury trial commenced on October 22, 2013. At trial, Pursley claimed his use of force against Fousek was justified as self-defense. Pursley also claimed his use of force against Patterson was justified as defense of others because according to Pursley, Patterson was sexually harassing his sister. During cross-examination, the prosecutor and Pursley had the following discussion:
[Prosecutor]: Okay. November 30, 2012, you told Officer Campbell, "I was there. I wasn't involved?"
. . . .
[Pursley]: Yes, ma'am. I did ...