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State v. Willingham

Supreme Court of South Dakota

September 11, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DONALD M. WILLINGHAM, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON MARCH 25, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE WALLY EKLUND Retired Judge

          MARTY J. JACKLEY Attorney General PATRICIA ARCHER Attorneys for plaintiff and appellee.

          SHILOH M. MACNALLY Attorney for defendant and appellant.

          KERN, JUSTICE

         [¶1.] Donald Willingham appeals convictions of attempted first-degree murder, aggravated assault on a law enforcement officer, possession of marijuana with the intent to distribute, possession of marijuana, and commission of a felony with a firearm. He argues the circuit court erred by denying his motions to suppress and abused its discretion by denying his proposed jury instructions on lesser-included offenses. We affirm.

         Facts and Procedural History

         [¶2.] On the morning of October 24, 2015, while patrolling I-90 east of Rapid City, South Dakota, Trooper Zac Bader observed a Suburban traveling 75 miles per hour in a 65 mile-per-hour zone. He turned on his emergency lights, which activated his forward-facing dash camera, and pulled the vehicle over. The driver of the Suburban stopped the vehicle on the shoulder of the road near mile marker 70.

         [¶3.] When Trooper Bader approached the passenger side of the vehicle, he immediately smelled a strong odor of marijuana coming from inside the Suburban. He requested that the driver, later identified as Chase Sukert, accompany him back to his patrol car. While issuing Chase a warning ticket for speeding, Trooper Bader commented that Chase and the interior of the Suburban smelled like marijuana. He left Chase in his patrol car and approached the vehicle again.

         [¶4.] Trooper Bader instructed the three passengers-later identified as Donald Willingham, Jonathan Melendez, and Desiree Sukert (Chase's sister)-to exit the Suburban and stand in the ditch while he searched the vehicle for marijuana. After finding a black duffel bag containing packages of marijuana, Trooper Bader turned toward the ditch to place the suspects under arrest. As he approached them, he walked outside the range of his dash camera.

         [¶5.] Addressing Willingham first, Trooper Bader told him to put his hands behind his back. Instead of complying, Willingham, a six-foot tall, 270-pound former semi-pro football player, advanced on Trooper Bader and punched him in the face, knocking him to the ground. While delivering forceful blows to Trooper Bader's face, Willingham began yelling "go, go, go!" to the others. At his command, Desiree jumped into the driver's seat of the Suburban and Melendez and Chase followed. Meanwhile, Willingham continued to beat Trooper Bader, telling him to "go to sleep" twice as he delivered his final punches.

         [¶6.] Willingham, Melendez, Desiree, and Chase fled the crime scene, leaving Trooper Bader, who was struggling to breathe and unable to move, lying in a pool of blood by the side of the road. When first responders arrived to render aid, he was barely conscious. It soon became clear that Trooper Bader was suffering from extensive, life-threatening injuries. Nearly every bone on the left side of his face (including his jaw) was broken, he was bleeding profusely, and he had severe swelling. He was rushed to the hospital for treatment and surgery.

         [¶7.] In the meantime, Willingham, Chase, Desiree, and Melendez decided to hide approximately fifty pounds of marijuana and a .380 caliber hand gun in a pasture next to a nearby country road. Before they left the field, Chase took a photo of the location on his phone so that they could relocate their stash. After disposing of the evidence, they drove to a motel in Wall. Willingham, Chase, and Desiree remained in the vehicle while Melendez went inside to rent a room.

         [¶8.] Around the same time, Deputy Sheriff Dan Rose, heard radio broadcasts describing the suspects' vehicle and pulled into a gas station to fill up his tank. While at the pump, he noticed a Suburban matching the description in the parking lot of a motel. He called for backup. With the help of two United States Forest Service Officers, Deputy Rose approached the Suburban and ordered the suspects out of the car. Willingham got out with his hands in the air, one of which was wrapped in a towel with ice, saying, "I did it. I did it. It was just me. No one else was involved." All four individuals were taken into custody. Law enforcement officers searched the vehicle and found $30, 000 cash inside.

         [¶9.] An officer called an ambulance to address Willingham's injured hand. While waiting for medical professionals, Willingham repeatedly told Officer Eric Nelson that he assaulted the officer. Although Officer Nelson was not questioning Willingham, he informed him that it was in his best interest to remain silent. Willingham ignored this advice and made further statements to the officers guarding him while riding in the ambulance and at the hospital. When paramedics asked whether he was under the influence of any drugs, Willingham said he had smoked marijuana earlier in the day and had taken a Vicodin tablet. After diagnosing him with a broken hand, Willingham's doctor administered pain medication to him.

         [¶10.] Once Willingham received treatment, officers transported him to the Criminal Investigations Division (CID) for questioning. At approximately 7:40 p.m., Willingham was advised of his Miranda rights and orally waived them. He spoke to Investigator Paul Stevens and Detective Stephen Neavill for nearly an hour before invoking his right to remain silent. At his request, law enforcement ceased questioning him and ended the interview shortly thereafter. However, even though he had asserted his right to remain silent, Willingham engaged in conversation with a sergeant while being transported to the jail.

         [¶11.] Later that evening, officers located the gun and marijuana in a field along I-90 by referencing the photo Chase had taken earlier in the day. The following afternoon, a detective contacted Willingham at the jail and asked if he wanted to talk. Willingham agreed to a second interview and was taken back to the CID. At 3:30 p.m., officers again read him his Miranda rights, which he waived. Willingham made several incriminating statements regarding the assault and discussed his role in transporting the marijuana through South Dakota. He also admitted to carrying a gun, which he transported in the Suburban with the drugs and money.

         [¶12.] Due to swift and extensive medical attention that involved several surgeries and a prolonged stay in the hospital, Trooper Bader survived the attack. A Pennington County grand jury indicted Willingham for attempted first-degree murder, alternative counts of aggravated assault on a law enforcement officer, possession of marijuana with the intent to distribute, possession of marijuana, and commission of a felony with a firearm.[1]

         [¶13.] Prior to trial, Willingham filed three motions to suppress his statements to law enforcement. He also moved to suppress evidence derivative of his arrest, arguing that Trooper Bader engaged in racial profiling as the basis for the traffic stop. According to defense counsel, although the driver of the vehicle (Chase) is Caucasian, Willingham, the back-seat passenger, is African American and Melendez is Hispanic. The Suburban had tinted windows.

         [¶14.] To address these claims, the court held two evidentiary hearings. At the first hearing, the parties stipulated to the admission of Trooper Bader's patrol camera video for the court's review with reference to Willingham's motion challenging the legality of the stop. The State also called several law enforcement officials to testify about the statements made by Willingham after his arrest. The State also entered the recordings of Willingham's interviews into evidence.

         [¶15.] Officer Nelson testified regarding his role in arresting Willingham outside the motel in Wall. He described Willingham's hand injury and the incriminating statements he made despite being advised to remain silent. Deputy Daniel Lewis detailed his experience with Willingham while guarding him at Rapid City Regional Hospital. Deputy Lewis testified that Willingham made several unsolicited statements to him-including, "I hit him too many times" and, "I hate when I fight. I can't stop"-which he recorded in his report. Investigator Paul Stevens, who was present during both of Willingham's interviews described Willingham's conduct during the interviews and recounted the statements Willingham made.

         [¶16.] At the second evidentiary hearing, Sergeant Chris Hislip testified about his encounter with Willingham while transporting him from the CID to the Pennington County Jail for booking. He narrated Willingham's statements about his fear that jail personnel and the police would not "treat him nicely" because he assaulted an officer. Sergeant Hislip stated that he assured Willingham he would not be assaulted but never questioned him.

         [¶17.] After considering the evidence and oral arguments of the parties, the circuit court issued a memorandum decision denying Willingham's motions to suppress his statements. The court also denied his motion to suppress the evidence seized as a result of the stop, finding that Trooper Bader "had a reasonable articulable suspicion to initiate a traffic stop" for speeding.

         [¶18.] During the three-day jury trial held in December 2017, twenty-two witnesses testified, including Melendez, who testified against Willingham as a condition of his plea agreement. Trooper Bader, who was still recovering from his injuries, also took the stand. At the close of the evidence, Willingham requested the court give the jury two lesser-included offense instructions for the greater offense of commission of a felony with a firearm-one for carrying a pistol or revolver without a permit and the other for concealment of a weapon with intent to commit a felony. The court did not give either instruction.

         [¶19.] The jury found Willingham guilty of attempted first-degree murder, aggravated assault on a law enforcement officer, possession of marijuana with the intent to distribute, possession of marijuana, and commission of a felony with a firearm. The circuit court sentenced Willingham to 45 years ...


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