CONSIDERED ON BRIEFS MAY 21, 2018
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA, THE HONORABLE BRADLEY G. ZELL
J. VOS MARK KADI of Minnehaha County Office of the Public
Advocate Sioux Falls, South Dakota Attorneys for defendant
J. JACKLEY Attorney General, JOHN M. STROHMAN Assistant
Attorney General Pierre, South Dakota, Attorneys for
plaintiff and appellee.
David Leonard Randle, Jr. appeals his convictions for
first-degree manslaughter, unauthorized ingestion of a
controlled substance, and possession of two ounces or less of
marijuana. Randle asserts the circuit court erred in denying
two motions for mistrial and rejecting a proposed jury
instruction on first-degree manslaughter. We affirm in part,
reverse in part, and remand for a new trial.
On October 24, 2015, a group of young adults attended a party
at a Sioux Falls condominium leased by Mason Mitzel. There
was evidence that the partygoers were drinking and using
marijuana and other illegal substances.
At some point during the evening, an AK-47 owned by Mitzel
was brought out amongst the partygoers. There was testimony
that different individuals handled the AK-47. Several
witnesses stated that Randle began handling the AK-47 and
that Randle had the gun sitting on his lap for an extended
time. More than one person stated Randle was
"playing" with the gun and at times, pointed it in
different directions as others sat in the room. Several
witnesses recognized that the clip was in the gun and
testified that they were nervous with how Randle was handling
the AK-47. Witnesses testified that several people in the
room asked Randle to put the gun away, but Randle stated he
could handle it. Witnesses also testified that at one point,
Mitzel took the gun from Randle, but that Randle picked up
the AK-47 again and continued handling it.
While Randle was sitting in the living room next to his
friend Mikael Ashame the gun discharged. Three witnesses, who
were in the living room when the AK-47 fired, testified that
Randle had the gun when it discharged. These witnesses
testified that they did not believe Mitzel was in the living
room when the gun discharged. The bullet struck Ashame,
traveled through his left hand and right forearm, and
penetrated the femoral artery in his groin.
The jury heard Randle's version of the shooting from a
recorded phone call with his girlfriend made while he was in
custody at the Minnehaha County Jail. During the call, Randle
told his girlfriend that Mitzel put the gun on his lap and
that Randle's chair, which had rollers, began to slide
backward. As the chair slid back, Randle claimed the gun
began to slide off his lap. Randle stated that he grabbed the
gun to prevent it from falling and that the gun discharged.
Randle claimed that after the gun went off, Ashame looked at
him and said, "You shot me," then went limp.
The partygoers immediately reacted to the gunshot. Mitzel,
who was under suspicion for drug dealing, stuffed black
duffel bags full of narcotics and other contraband, threw
them in the trunk of his car, and fled the scene. Randle and
another friend Desmond Henderson attempted to carry Ashame to
a vehicle in the driveway to take him to the emergency room.
The pair placed Ashame on the lawn and attempted to start the
nearest vehicle. The vehicle would not start because of a
dead battery, so they brought Ashame back into Mitzel's
The remaining partygoers hurriedly placed the AK-47 and
another gun in the back of a van and left the scene.
Henderson and Randle continued to attend to Ashame. Randle
applied pressure to Ashame's wound and told Henderson to
call 911. Several minutes later, law enforcement arrived and
found Randle still tending to Ashame's wound. The wound
had stopped bleeding, but law enforcement immediately
requested emergency medical personnel. Ashame was taken by
ambulance to Sanford Hospital where he was pronounced dead.
Minnehaha County Coroner Dr. Kenneth Snell stated
Ashame's cause of death was a gunshot wound to the
Back at Mitzel's residence, police officers began to
investigate the incident. Officers observed marijuana shake
and drug paraphernalia in the family room, a trail of blood
leading outside the home, and a pool of blood in the grass.
They found a blue bag on the front porch that was full of
narcotics and contraband, and an empty shell casing on the
family room floor. The officers interviewed Randle, who told
them a masked intruder had broken into Mitzel's home to
steal money. Randle claimed the burglar accidently shot
Ashame and fled the residence.
Meanwhile, the partygoers who had left the scene began to
call Sanford Hospital to ask about Ashame's condition.
Law enforcement followed up on these calls and obtained the
statements of several of the individuals. Police ascertained
that there was no attempted burglary and that Randle had been
holding the AK-47 when it fired. They also learned that a
group had left the party in a van and had discarded the AK-47
in a wooded area behind a Sioux Falls trailer park. The group
had also disposed of their bloody clothes, narcotics, and
drug paraphernalia. Police recovered the discarded items.
Police arrested Randle, secured a search warrant, and
collected his DNA and a urinalysis (UA). Randle's UA
revealed he had carboxyl, THC, benzoylecgonine, MDMA, and
codeine in his system at the time of the incident. Randle was
charged with first-degree manslaughter, second-degree
manslaughter, unauthorized ingestion of a controlled
substance, and possession of two ounces or less of marijuana.
A trial was held September 12-16, 2016.
At the start of trial, the circuit court ordered that the
witnesses be sequestered per SDCL 19-19-615. The State
subpoenaed Abbygail Thomas to testify on the first day of
trial. Thomas arrived at the courthouse early and sat in the
courtroom during the testimony of one police officer. After
learning that Thomas had been in the courtroom before
testifying, Randle's trial counsel moved for a mistrial.
After a brief hearing, the circuit court held that a
violation of the sequestration order had occurred but denied
the motion. Thomas later testified.
During the direct examination of Detective Timothy Bakke, the
prosecutor asked whether Randle had requested to consult
counsel during an interview after the incident. Randle's
counsel objected to the question before any answer was given.
Following a bench conference, the prosecutor moved on to a
different topic and the question was never answered.
Randle's counsel moved for a mistrial. The circuit court
denied the motion.
Randle proposed a jury instruction for excusable homicide for
the first-degree manslaughter charge. The instruction was
designed to support Randle's theory of defense that
Ashame's death was accidental. The circuit court rejected
the proposed instruction.
Randle was convicted by the jury on all counts. He appeals
those convictions asserting the following issues for our
1. Whether the circuit court erred by denying Randle's
motion for mistrial after a state witness violated the