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State v. Gregory Dejesus Two Hearts

Supreme Court of South Dakota

March 20, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
GREGORY DEJESUS TWO HEARTS Defendant and Appellant.

          CONSIDERED ON BRIEFS NOVEMBER 12, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE TONY L. PORTRA Judge

          MARTY J. JACKLEY Attorney General

          JOHN M. STROHMAN Assistant Attorney General Attorneys for plaintiff and Pierre, South Dakota appellee.

          JERALD M. McNEARY, JR. of Gerdes & McNeary, P.C. Attorneys for defendant Aberdeen, South Dakota and appellant.

          KERN, JUSTICE

         [¶1.] Gregory Two Hearts appeals convictions for first-degree robbery and aiding, abetting, or advising first-degree robbery stemming from two separate cases. He asserts the circuit court erred by denying his motions to dismiss the indictments for a violation of his right to a speedy trial and for failing to grant his motion to suppress his statements to law enforcement. We affirm.

         Facts and Procedural History

         [¶2.] On January 19, 2015, three men robbed the Casino Korner in Aberdeen, South Dakota and then fled avoiding arrest. The suspects evaded the police for months.[1] A second robbery occurred at the Sooper Stop gas station in Aberdeen on March 13, 2015. Following a lead on March 18, police arrived at the Ramkota Hotel where Two Hearts was staying to question him about the robbery. An armed standoff ensued, during which Two Hearts alleged that he attempted suicide via methamphetamine overdose. Two Hearts was arrested and held briefly at the Brown County Jail. On March 19, he was transported to the South Dakota State Penitentiary for an unrelated parole violation.

         [¶3.] Almost immediately after his arrival at the penitentiary, Two Hearts began engaging in self-harming behavior. From March 19 through March 26, he was periodically placed in protective restraints to prevent him from harming himself. As indicated by prison medical records, staff responded to his behavior by treating him with a combination of three different medications-Haldol, Ativan, and Benadryl-intermittently between March 19 and early April.[2] Nevertheless, he continued to threaten to harm himself, picked at his self-inflicted wounds, and cut his arms when not restrained.

         [¶4.] On March 24, Two Hearts asked his parole officer to contact law enforcement and arrange an interview for him. Detectives interviewed him on March 25 and again on March 31. In each interview, he was advised of his Miranda rights. During the interviews, Two Hearts admitted involvement in the robberies and provided detailed information.

         [¶5.] On April 7, 2015, a grand jury indicted Two Hearts for first-degree robbery of Sooper Stop. He was also charged in a joint indictment with co-defendants Roger Kihega and Michael Washington for aiding, abetting, or advising first-degree robbery of Casino Korner. Two Hearts made his initial appearance on both indictments on June 22, 2015. He was arraigned on the charges on August 6, 2015, and part II informations were filed in each case, charging Two Hearts as a habitual offender. The two cases were assigned to different judges.

         [¶6.] The Casino Korner case against Two Hearts, Kihega, and Washington was set for jury trial on September 16, 2015. In August, the judge assigned to the Casino Korner robbery severed Two Hearts from the joint indictment at Kihega's request. Kihega retained the September 16 trial date. Between August and December 2015, the State attempted to schedule both of Two Hearts's trials with defense counsel to no avail. On January 9, 2016, Two Hearts moved to dismiss each case with prejudice, alleging the State violated the 180-day rule because 212 days had passed since his initial appearance. At a hearing on January 15, the circuit court denied Two Hearts's motion, concluding that the 180-day period was tolled from November 17, 2015, to January 20, 2016. January 20 had been set as Two Hearts's new trial date on the Casino Korner case. Two Hearts then moved for a continuance, which the court granted.

         [¶7.] On July 15, 2016, Two Hearts moved to suppress his statements to law enforcement from consideration in either case. At a hearing on the motion, the court heard testimony from Detective Neil of the Aberdeen Police Department, the State's expert Dr. Hartley Alsgaard of the South Dakota Human Services Center, and Two Hearts's expert psychiatrist Dr. Sarah Flynn from Avera University Psychiatry Associates. Detective Neil testified that Two Hearts remained alert and appropriately responded to questioning during each interview. Dr. Alsgaard, after listening to the recordings of the interviews, opined that Two Hearts was cognizant of his surroundings and the content of the interview questions. In contrast, Dr. Flynn testified that Two Hearts was incapable of making voluntary statements due to his fragile mental state, prior physical restraints, sedation, and withdrawal from drugs and alcohol. The court took the matter under advisement and later issued a memorandum decision denying Two Hearts's motion to suppress.

         [¶8.] Both of Two Hearts's trials resulted in guilty verdicts. On August 16, 2017, Two Hearts entered an admission to the habitual offender information in the Casino Korner case pursuant to a plea bargain with the State.[3] The circuit court sentenced him to serve 25 years in prison for each offense with the sentences to run consecutively.

         [¶9.] Two Hearts appeals each conviction. Because his claims of error involve nearly identical facts and legal arguments, we consolidated his appeals and restate his issues as follows:

         1. Whether the circuit court erred by denying Two Hearts's motion to dismiss for violation of his statutory right to trial within 180 days and his constitutional right to a speedy trial.

         2. Whether the circuit court erred in denying Two Hearts's motions to suppress.

         Decision

         Statutory right to a speedy trial

         [¶10.] Two Hearts argues the circuit court erred when it denied his motions to dismiss both indictments for violating the 180-day rule and his constitutional right to a speedy trial in both cases. The "180-day rule" is a rule of procedure, not a constitutional requirement and, therefore, requires a separate analysis. Hays v. Weber, 2002 S.D. 59, ¶ 16, 645 N.W.2d 591, 596. Pursuant to SDCL 23A-44-5.1, a defendant must be brought to trial within 180 days from the date the defendant first appeared before any "judicial officer on an indictment, information or complaint." State v. Andrews, 2009 S.D. 41, ¶ 7, 787 N.W.2d 181, 183. Certain days are properly excluded from this calculation, including "delay which is occasioned by the defendant's conduct, such as delay caused by pretrial motions . . . [and] defendant's competency examination . . . ." State v. Webb, 539 N.W.2d 92, 95 (S.D. 1995); SDCL 23A-44-5.1(4)(a)-(f).

         [¶11.] Additionally, the court may find good cause for delay for other exceptional circumstances, not specifically enumerated in the rule. SDCL 23A-44-5.1(4)(g). The burden is on the prosecution to establish the existence of good cause for delay. See SDCL 23A-44-5.1(5); see also State v. Cooper, 421 N.W.2d 67, 71 (S.D. 1988). If the defendant is not brought to trial within 180 days, accounting for any properly excluded days, prejudice to the defendant is presumed and the case shall be dismissed unless the prosecuting attorney successfully rebuts the presumption of prejudice. SDCL 23A-44-5.1(5).

         [¶12.] "A circuit court's findings of fact on the issue of the 180-day rule are reviewed using the clearly erroneous rule." State v. Seaboy, 2007 S.D. 24, ¶ 6, 729 N.W.2d 370, 372. However, "[w]e review . . . whether the 180[-]day period has expired as well as what constitutes good cause for delay under a de novo standard." Andrews, 2009 S.D. 41, ¶ 6 n.1, 767 N.W.2d at 183 n.1. Because Two Hearts's initial appearances for each case occurred on the same day, we address Two Hearts's allegations together.

         [¶13.] A brief chronology of the events following Two Hearts's initial appearances is set forth below:

6/22/15: Initial appearance on both cases.
8/6/15: Arraignment on both cases. The court ordered the parties to develop a scheduling order for the Sooper Stop robbery.
8/7/15: The State provided a proposed scheduling order to Two Hearts but received no response.
8/14/15: The State requested a November 17, 2015 trial date.
8/17/15: Defense was notified that this date worked for the court and the State. The State followed up on the proposed scheduling order two days later via e-mail but received no response.
8/20/15: The charges against Two Hearts for the Casino Korner robbery were severed from the joint indictment.
8/25/15: The State inquired about a proposed trial date for the Sooper Stop trial but received no response.
9/2/15: Defense agreed to the November trial date, but by then, only back-up dates were available. Defense counsel acknowledged that once he hired an assistant, his scheduling practices would get better.
9/7/15: Defense requests one judge be assigned to both criminal files. The request was ...

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