CONSIDERED ON BRIEFS ON JANUARY 7, 2019
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE ROBIN J. HOUWMAN
J. JACKLEY Attorney General
MATTHEW W. TEMPLAR Assistant Attorney General Attorneys for
plaintiff Pierre, South Dakota and appellee.
KADI of Minnehaha County Office of the Public Advocate
Attorneys for defendant Sioux Falls, South Dakota and
Jarod Stone appeals his convictions for second-degree murder,
possession of a controlled substance, and possession of a
firearm by a convicted drug offender. Stone argues the
circuit court committed multiple errors in pretrial rulings
and at trial, including: denying his motion to sever,
allowing other acts evidence and certain opinion testimony to
be introduced at trial, denying his motion for a mistrial,
and denying his motions for judgment of acquittal. Stone
further argues that the cumulative effect of these errors
justifies a new trial. We affirm the convictions.
and Procedural History
On April 22, 2016, Stone and Lachara Bordeaux drove to the
Lucky Lady Casino in Sioux Falls. Stone entered the casino
and Bordeaux entered another nearby business. While Stone was
playing video lottery, Baptise White Eyes entered the casino.
White Eyes and Stone had an antagonistic history arising from
a romantic relationship Stone had with White Eyes's
former girlfriend while White Eyes was in prison.
Shortly after White Eyes entered the casino, the two began
arguing and were asked to leave. After leaving the casino,
White Eyes hit Stone in the face. Stone retaliated by
punching White Eyes. Stone then began moving away from White
Eyes, but White Eyes continued to follow Stone. Stone drew a
handgun and told White Eyes to stay away or he would be shot.
White Eyes continued to move toward Stone and Stone fired two
shots at White Eyes. The first shot hit White Eyes in the
head knocking him to the ground. The second shot was fired
after White Eyes fell, and missed White Eyes. White Eyes was
taken to a nearby hospital where he was pronounced dead.
Bordeaux witnessed the shooting. She told Stone to get in her
car and they left the scene. Shortly after the shooting,
Stone sent a text message to his girlfriend Claressa Calderon
stating, "I just killed someone I'm sorry." Law
enforcement obtained the casino's surveillance footage of
the shooting and distributed still shots of the shooter to
the local media. Stone was identified and law enforcement
received a tip that he rented a room at a Sioux Falls hotel.
The day after the shooting, a search warrant was executed for
the hotel room registered to Stone. During the search, law
enforcement found a cup containing several .380 caliber
cartridges matching the manufacturer and caliber of the shell
casings found at the scene of the shooting. On a table in the
room, law enforcement also found a hotel receipt with
Stone's name on it, stationary bearing Bordeaux's
name, and three glass pipes, one of which contained white
residue later identified as methamphetamine.
On April 26, 2016, Bordeaux was located in Le Mars, Iowa and
interviewed by Detective Montgomery of the Sioux Falls Police
Department. Bordeaux explained that after the shooting, she
and Stone obtained a different car and drove to Minnesota.
They then returned to South Dakota and again replaced their
vehicle before traveling to Minnesota, Illinois, and Iowa
where Stone left Bordeaux.
The next day, Stone was stopped by law enforcement in South
Dakota, but evaded capture after providing false information
of his identity. Stone's vehicle was later found
abandoned on Interstate 90 near Presho. A search of the
vehicle revealed a receipt from Wisconsin, a wig, and
Stone's South Dakota identification card. Later that
evening, Nebraska State Patrol stopped a vehicle traveling on
Interstate 80 with Stone in the back seat. After the other
passengers exited the car, Stone entered the driver's
seat and drove away. Law enforcement followed Stone, leading
to a high-speed pursuit across western Nebraska. Stone's
vehicle was eventually stopped after crossing into Wyoming
and Stone was taken into custody.
Stone was interviewed the next day by Sioux Falls detectives
including Detective Montgomery. Stone admitted to shooting
White Eyes and firing two shots. When discussing the second
shot, Detective Montgomery suggested the second shot could
have been an involuntary reflex. Stone agreed the second shot
was unintentional. Stone stated he believed White Eyes was
reaching for a gun prior to the shooting. Stone also told law
enforcement that he left of the scene of the shooting because
he had "dope" in his pocket. Stone was asked about
the location of the handgun used to kill White Eyes. Stone
said he discarded the handgun a few blocks from the casino
after he fled the scene. The handgun was never recovered.
Stone was indicted for first-degree murder, second-degree
murder, three counts of first-degree manslaughter (heat of
passion, dangerous weapon, and commission of a felony),
unauthorized possession of a controlled drug or substance,
and possession of a firearm by a convicted felony drug
offender. He pleaded not guilty on all counts.
Stone moved to sever the charge of possession of a firearm by
a convicted felony drug offender (Count VII) from the other
charges in the indictment. He argued the use of his prior
conviction for possession of a controlled substance to prove
the status offense in Count VII was prejudicial. The circuit
court denied the motion to sever.
Prior to trial, Stone also moved to exclude other acts
evidence consisting of his criminal record and his actions
following the shooting. Stone argued this evidence was
irrelevant and prejudicial. Stone also argued the evidence
infringed on his Fifth Amendment right to remain silent. The
circuit court denied the motion, except as to evidence of any
crimes committed by Stone after he left the scene of the
At trial, the State asked Detective Montgomery about
Stone's interstate journey and the following exchange
[State:] And so on April 27th of 2016, was there finally a
sighting of Mr. Stone?
[Detective Montgomery:] Yes. Mr. Stone had gotten back into
South Dakota and he was around the Presho exit here in South
Dakota, and he had contact with a South Dakota State Trooper.
[State:] And so based on this information, did Sioux Falls
send a team out to that location?
[Detective Montgomery:] We did. Mr. Stone was sent on his way
at that point in time. He did not reveal his true identity.
And he was sent on his way. And the car was eventually
objected, arguing Montgomery's answer violated the
court's prior order excluding evidence of other crimes
and moved for a mistrial. The circuit court denied the motion
for mistrial determining the testimony did not violate the
court's pretrial order.
Later during Detective Montgomery's testimony, the State
asked if the second shot fired by Stone was a sympathetic
reflex. Stone objected arguing a lack of foundation and
failure to disclose an expert opinion. The circuit court
overruled the objection, and Detective Montgomery answered,
[l]ooking at the video now and looking at the evidence, it
does not seem likely . . . . One of the things with witnesses
and from the investigation, was the rounds went off fairly
close together when fired and so . . . it makes it
unlikely that it went that way as a sympathetic reflex
shot. (Emphasis added).
At the conclusion of the State's evidence, Stone moved
for a judgment of acquittal on all counts. The circuit court
entered a judgment of acquittal on first-degree manslaughter,
but denied the motion on all the other counts. The jury found
Stone not guilty of first-degree murder, but guilty on the
remaining counts. Stone was sentenced to life in prison on
the conviction for second-degree murder. A five-year
concurrent sentence was ...