OCTOBER 5, 2016
REASSIGNED APRIL 20, 2017
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN
COUNTY, SOUTH DAKOTA THE HONORABLE RICHARD A. SOMMERS Judge
J. JACKLEY Attorney General ANN C. MEYER Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
J. COGLEY of Ronayne & Cogley, PC Aberdeen, South Dakota
Attorneys for defendant and appellant.
ZINTER, Justice (on reassignment).
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
and Procedural History
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.
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.
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
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.
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" 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."
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
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
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 as follows:
1. Whether Washington's accomplice testimony was
2. Whether the circuit court erred in admitting certain
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.
Corroboration of Accomplice Testimony
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
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
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.
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.
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, ...