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State v. Kiir

Supreme Court of South Dakota

August 2, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
DIW BOL KIIR, Defendant and Appellant.



          MARTY J. JACKLEY Attorney General

          CULLEN P. MCNEECE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          RYAN KOLBECK of Waltner, Kolbeck & Scharffenberg, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.

          WILBUR, Retired Justice

         [¶1.] A jury found defendant guilty of eight offenses. Defendant appeals the circuit court's admission of res gestae evidence, claiming the evidence violated his Sixth Amendment right of confrontation. Defendant also challenges the sufficiency of the evidence for three offenses. We affirm.


         [¶2.] Officer Chase Vanderhule received a call from dispatch at approximately 8:15 p.m. on May 15, 2015, to respond to a report of an aggravated assault with a firearm at an apartment complex in Sioux Falls, South Dakota. Officer Vanderhule arrived at the apartment complex and made contact with the reporting witnesses. The witnesses spoke to Officer Vanderhule with the help of a Spanish interpreter. The witnesses relayed that a silver, gray, or brown Chevy Impala or Malibu arrived near the area with multiple African American males and one female inside the vehicle. The witnesses claimed that one person from the vehicle tried to sell them drugs. They further claimed that when they refused, one of the African American males pointed a firearm at them. The witnesses reported that this male was wearing a red hat and white t-shirt and was approximately 25 to 30 years old. The witnesses also described the gun-it had a black grip, a silver top, and a slide that racks back. The witnesses told Officer Vanderhule that the vehicle and its occupants left the area after the incident.

         [¶3.] While Officer Vanderhule was speaking with the witnesses and reviewing the surveillance footage from the apartment complex, he learned that a male fitting the witnesses' description of the alleged perpetrator was in the area. Officer Vanderhule immediately called for assistance. He left the witnesses and proceeded to the area where the male was reportedly located. Officer Vanderhule later testified that as he rounded a corner at the apartment complex, he saw a person, later identified as Diw Bol Kiir, who fit the description provided by the witnesses-red hat, white t-shirt, African American male, 25 to 30 years old. The area, according to Officer Vanderhule, had one light and was poorly lit. Officer Vanderhule noticed that Kiir had a cigarette in his hand.

         [¶4.] Officer Vanderhule decided to make contact with Kiir. He attempted to engage Kiir in nonconfrontational conversation. Officer Vanderhule testified that he asked Kiir his name. Kiir gave a false name. The officer also asked Kiir what Kiir was doing at the apartment complex. Officer Vanderhule testified that he asked the question many times before Kiir answered. Kiir claimed that he had arrived to drop off beer to his friend. Officer Vanderhule told Kiir that he was at the complex to investigate an incident and that he wanted to discuss the incident with Kiir. According to Officer Vanderhule, Kiir immediately responded, "No, I wasn't here. No, I wasn't here."

         [¶5.] Officer Vanderhule testified that he had asked Kiir to come with him to the parking lot to talk about why Officer Vanderhule was at the apartment complex. As Kiir was stepping off the stairs onto the sidewalk area, Officer Vanderhule asked Kiir if he had any weapons on him. Kiir responded, "What for?" Officer Vanderhule testified that he asked Kiir the same question again. Kiir responded, "No, I don't have any weapons on me." Officer Vanderhule informed Kiir that he wanted to pat Kiir down to see if he had any weapons. Officer Vanderhule took a step toward Kiir and according to the officer, Kiir threw his cigarette on the ground, clenched his fists, "and started bouncing up and down as though he were a boxer in a boxing ring about to fight somebody." Officer Vanderhule testified that Kiir said, "No, you are not going to touch me. Do not touch me. Do not come over here and touch me." The officer explained to the jury that he tried to remain calm, keep the peace, and express his desire to Kiir that nothing happen.

         [¶6.] When Kiir did not alter his actions, Officer Vanderhule drew his taser and ordered Kiir to get on the ground. According to Officer Vanderhule, Kiir turned and ran. The officer deployed his taser and the two probes attached to Kiir, causing him to fall onto his stomach. Officer Vanderhule testified that he told Kiir to stay on the ground and to put his hands behind his back. Once Kiir complied, the officer approached Kiir, placed a knee on Kiir's back, and grabbed his handcuffs. After Officer Vanderhule attached a handcuff to Kiir's left hand, Kiir began to resist. Kiir struggled and freed his right hand. According to Officer Vanderhule, Kiir tried to grab the front part of Kiir's pants with his right hand and fought against Officer Vanderhule's attempt to restrain him. Officer Vanderhule testified that the force of Kiir's resistance injured the officer's left hand. Officer Vanderhule activated the taser again when Kiir attempted to bite the officer.

         [¶7.] After being tased, Kiir told Officer Vanderhule he would comply. But according to the officer, Kiir did not. Kiir rotated his body and reached toward his waistband. According to Officer Vanderhule, he tased Kiir three or four more times, but Kiir continued to resist. At this point during the struggle, Officer Vanderhule heard a noise come from around the corner. He looked up and noticed Officer Matt Dunn. Officer Vanderhule testified that shortly thereafter he placed Kiir's right hand in the handcuff. According to Officer Vanderhule, his struggle to restrain Kiir spanned approximately two minutes. Once Kiir was fully handcuffed, Officer Dunn assisted Officer Vanderhule in lifting Kiir to his feet and moving him approximately five or six feet from where the struggle occurred.

         [¶8.] After placing Kiir under arrest, Officer Dunn shined his flashlight in the area of the struggle. He observed a gun. The gun appeared to be consistent with that described by the witnesses reporting the alleged aggravated assault. Officer Vanderhule also noticed a vehicle in the parking lot, which was not there when the officer first arrived, but which matched the one described by the witnesses. The officers had the vehicle towed from the scene. The next day, law enforcement obtained consent from the owner of the vehicle to search it. Officer Patrick Mertes searched the vehicle and found a dark-colored backpack behind the driver's seat. Inside the bag were two jeweler's bags and two scales wrapped in men's underwear. Law enforcement later confirmed the presence of methamphetamine in the jeweler's bags. A bus ticket listing Kiir's name was also in the backpack.

         [¶9.] On May 28, 2015, a grand jury issued an eleven-count indictment against Kiir. The indictment alleged that Kiir committed the following offenses: Count 1-aggravated assault against law enforcement; Counts 2-4-alternative counts of simple assault against law enforcement; Count 5-possession of a controlled substance; Count 6-possession of a controlled substance while armed; Count 7-simple assault against law enforcement while armed; Count 8- possession of a firearm with an altered serial number; Count 9-possession of a firearm by a person with one prior drug conviction; Count 10-grand theft; Count 11-resisting arrest. The State also filed a part II information alleging Kiir to be a habitual offender.

         [¶10.] Kiir filed a motion in limine to "suppress any out-of-court statements not subject to cross-examination" and to "suppress any statements or references regarding allegations of attempted narcotics sales and intimidation with a weapon[.]" In a pretrial hearing, the circuit court ruled that Officer Vanderhule may testify about the statements made to him in the initial report. The court held that the statements provided context and were res gestae evidence. However, the court suppressed any statement by Officer Vanderhule that one of the reporting witnesses told the officer that the witness observed the alleged ...

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