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State v. Kihega

Supreme Court of South Dakota

September 20, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
ROGER LEE KIHEGA, Defendant and Appellant.

          ARGUED OCTOBER 5, 2016

          REASSIGNED APRIL 20, 2017


          MARTY J. JACKLEY Attorney General ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          THOMAS J. COGLEY of Ronayne & Cogley, PC Aberdeen, South Dakota Attorneys for defendant and appellant.


          ZINTER, Justice (on reassignment).

         [¶1.] Roger Kihega appeals his convictions of first-degree robbery and possession of a firearm by a convicted felon. He contends the State's evidence was insufficient to corroborate accomplice testimony. He also challenges a number of the circuit court's evidentiary rulings and its sentence. We affirm.

         Facts and Procedural History

         [¶2.] On January 19, 2015, three men robbed the Casino Korner in Aberdeen, South Dakota. The victims (the casino clerk and patrons) testified that between 8:30 p.m. and 9:00 p.m., two masked men armed with handguns entered the casino, discharged their weapons, and ordered everyone to get down on the floor. One of the masked men then ordered the counter clerk to "get the money" while the other took a wallet and cellphone from one of the patrons lying on the floor. After taking approximately $4, 600 in cash, the two fled in a getaway vehicle driven by a third man.

         [¶3.] Following an investigation, law enforcement arrested Roger Kihega, Gregory Two Hearts, and Michael Washington. Washington pleaded guilty to robbery; Two Hearts was charged with aiding and abetting robbery; and Kihega was charged with robbery and possession of a firearm by a convicted felon. This appeal concerns Kihega.

         [¶4.] At Kihega's trial, the State called Two Hearts to testify. Outside the presence of the jury, the circuit court questioned Two Hearts whether he intended to exercise his Fifth Amendment right to remain silent. Two Hearts would not respond. Although Two Hearts subsequently received immunity, he continued to not respond to questions in chambers or in front of the jury, and the circuit court jailed Two Hearts for contempt.

         [¶5.] Washington had cooperated with law enforcement and he testified. He provided a detailed description of the three men's individual acts inside the casino, in their escape, and in their disposition of the robbery proceeds. He indicated that he and Kihega, armed with .25 caliber and 9 millimeter handguns, entered the casino and discharged their guns into the ceiling. Washington stayed in the back of the casino where he took a patron's wallet and cellphone while Kihega went to the front counter and took the cash from the clerk. Washington testified that he and Kihega then left the scene in the getaway vehicle driven by Two Hearts.

         [¶6.] With respect to the escape, Washington indicated that he snapped the patron's cellphone in half and threw it out of the car as the three fled to Hankinson, North Dakota. While in Hankinson, they spent a "couple hours" at a casino gambling before proceeding to the Mystic Lake Casino in Minnesota. There, they obtained a hotel room, split up the stolen money, and continued gambling. Washington testified that the three returned to Aberdeen a few days later. Washington also testified that after he began cooperating with law enforcement following his arrest, he received a "kite"[1] from Kihega while the two were in jail. Washington testified that in the kite, Kihega threatened Washington to "keep quiet." Kihega also instructed Washington to tell people that he had fabricated his confession implicating Kihega.

          [¶7.] The State introduced other evidence tending to connect Kihega with the robbery. That evidence included 24 audiotapes of jailhouse telephone conversations between Kihega and his wife. In those conversations, Kihega confirmed that he had sent the kite to Washington, telling him to keep quiet and to "shut his f-ing mouth." The audiotapes also revealed that Kihega had gone much further to absolve himself of his participation in the robbery. Kihega requested his wife tell Washington that he needed to "fix this" by concocting an excuse for his confession. Kihega suggested that Washington claim he felt threatened or that he heard the police would release him if he told them what they wanted to hear. Kihega emphasized that there would be "consequences" for Washington's disclosure of Kihega's participation in the robbery: Kihega said Washington was "f-ed" and that Kihega would "fire on his little ass" if Washington said Kihega's name. Kihega also called Washington a "snitch" and said that, if he could, he would "knock [Washington's] f-ing voice box out, " explaining that "silence is our f-ing weapon." Kihega even acknowledged his low odds of escaping conviction for the robbery. He stated he was "probably gonna be gone a while this time."

         [¶8.] Detective Jeff Neal, who investigated the robbery, also testified. He indicated he had confirmed that the cell phone stolen in the robbery had "pinged" on a route that would have been used in the three men's escape. Neal also obtained Kihega's check-in receipt and player's card[2] for the Mystic Lake Casino, which provided physical evidence of Kihega's presence with the robbers in their escape and disposition of robbery proceeds. Neal also obtained an in-custody telephone recording made by Kihega to his wife on April 16, 2015, after Washington began cooperating with law enforcement. In the recording, Kihega's wife asked him whether he thought law enforcement possessed surveillance footage of him in the North Dakota casino visited by Washington and Two Hearts. He admitted: "I'm sure they do."

         [¶9.] Kihega moved for a judgment of acquittal at the conclusion of the State's evidence. He argued the State did not corroborate Washington's accomplice testimony. The circuit court denied the motion and submitted the corroboration question to the jury. The jury found Kihega guilty of both charges. Kihega appeals, and we restate the issues[3] as follows:

1. Whether Washington's accomplice testimony was sufficiently corroborated.
2. Whether the circuit court erred in admitting certain evidence.
3. Whether the circuit court violated Kihega's right of confrontation by allowing Neal to testify that he had corroborated some of Washington's story through an interview with Two Hearts.
4. Whether Kihega's sentence violated the Eighth Amendment's ban on cruel and unusual punishment.


         1. Corroboration of Accomplice Testimony

         [¶10.] Kihega observes that Washington was an accomplice and that a "conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense." SDCL 23A-22-8. Kihega argues Washington's story was not corroborated with any other evidence "tending to connect" him with the robbery. See id. Therefore, he contends that the evidence was insufficient as a matter of law and that the circuit court should have granted his motion for judgment of acquittal.[4]

         [¶11.] Corroborative evidence may not "merely show[] the commission of the offense, or the circumstances thereof" but must "tend[] to connect the defendant with the commission of the offense." SDCL 23A-22-8. However, "[a]ccomplice testimony need not be corroborated by evidence sufficient to sustain a conviction. The mandate of SDCL 23A-22-8 is satisfied where the corroborative evidence in some substantial degree tends to affirm the truth of the testimony of the accomplice and establish the guilt of the accused." State v. Smithers, 2003 S.D. 128, ¶ 30, 670 N.W.2d 896, 902. "In deciding this sufficiency question, circumstantial evidence may satisfy the corroboration requirement." Id. ¶ 30, 670 N.W.2d at 903. Additionally, "[t]he accused himself can provide the necessary corroboration." Id. ¶ 30, 670 N.W.2d at 902. "[W]hether the corroboration is sufficient is a question of fact for the jury." Id.

         [¶12.] Here, the jury received both physical and testimonial evidence that clearly "tend[ed] to affirm the truth of" Washington's story. See id. Although the victims could not identify Kihega because the robbers covered their faces, the victims confirmed Washington's highly detailed description of each robber's different acts inside the casino during the robbery. Additionally, Detective Neal testified that bullet holes found in the ceiling of the casino matched the caliber of ammunition that Washington claimed he and Kihega had used. Neal also testified that shell casings matching both calibers were discovered on the floor, and a slug from a .25 caliber bullet was found lodged under a shingle on the roof. Neal further testified that a cellphone carrier confirmed that it had recorded a "pinging [from the patron's stolen cellphone] a few miles north of Aberdeen, " a location on the escape route. These detailed facts unquestionably tended to affirm the truth of Washington's story because they could have been known only by the robbers who were actually inside the casino and the getaway car.

         [¶13.] The State also introduced physical and testimonial evidence circumstantially "tend[ing] to connect" Kihega with the robbery. See SDCL 23A-22-8; Smithers, 2003 S.D. 128, ¶ 30, 670 N.W.2d at 902. Detective Neal contacted the Mystic Lake Casino and obtained a receipt confirming Kihega had checked in on January 20, 2015, at 4:23 a.m. Neal also confirmed that Kihega's Mystic Lake Casino player's card was activated at 5:29 a.m. on the same day. Moreover, Kihega's own acts and statements tended to connect him to the robbery. Numerous telephone recordings reflected his consciousness of guilt and his attempts to destroy the evidence disclosing his participation in the robbery. He admitted law enforcement probably had surveillance footage of him in the North Dakota casino with Washington and Two Hearts during their escape; he repeatedly attempted to silence Washington and get him to retract his confession implicating Kihega in the robbery; and Kihega even acknowledged he would likely be found guilty of the robbery.

         [¶14.] Contrary to the dissent, the foregoing facts are "relevant" to the corroboration question. See dissent ¶ 54. "Evidence is relevant if . . . [i]t has any tendency to make a fact more or less probable than it would be without the evidence." SDCL 19-19-401. The evidence detailed above certainly makes Washington's story and Kihega's participation in the robbery "more . . . probable than [they] would be without the evidence." Id. Kihega concedes this point himself, ...

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