CONSIDERED ON BRIEFS NOVEMBER 12, 2018
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN
COUNTY, SOUTH DAKOTA THE HONORABLE TONY L. PORTRA Judge
J. JACKLEY Attorney General
M. STROHMAN Assistant Attorney General Attorneys for
plaintiff and Pierre, South Dakota appellee.
M. McNEARY, JR. of Gerdes & McNeary, P.C. Attorneys for
defendant Aberdeen, South Dakota and appellant.
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.
and Procedural History
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. 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
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. Nevertheless, he continued
to threaten to harm himself, picked at his self-inflicted
wounds, and cut his arms when not restrained.
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.
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
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.
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.
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. The circuit court
sentenced him to serve 25 years in prison for each offense
with the sentences to run consecutively.
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:
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
Whether the circuit court erred in denying Two Hearts's
motions to suppress.
right to a speedy trial
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).
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).
"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.
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
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
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 ...