State v. Kihega
2017 SD 58
| S.D. | 2017Background
- On Jan. 19, 2015 three masked, armed men robbed Casino Korner; two entered, fired shots, ordered victims to the floor, and took about $4,600 while a third drove the getaway car.
- Defendants arrested: Roger Kihega (charged with first-degree robbery and felon-in-possession), Gregory Two Hearts (aiding/abetting charge), Michael Washington (pleaded guilty and cooperated).
- Washington (accomplice) testified in detail about roles: he and Kihega entered with .25 and 9mm handguns, fired into the ceiling, Washington took a patron’s wallet/phone while Kihega took cash from the clerk, then they fled with Two Hearts driving.
- Corroborating evidence: ballistics (calibers, casings, slug in roof), cell-phone ping on the escape route, Mystic Lake casino receipt/player card showing Kihega’s presence during the escape, and 24 recorded jail calls in which Kihega urged Washington to be quiet and concoct a story.
- Two Hearts refused to testify (contempt); the State called Detective Neal who testified to investigative corroboration including that he had interviewed Two Hearts (without repeating Two Hearts’s out-of-court statements). Jury convicted Kihega; he appeals on corroboration, evidentiary rulings, Confrontation Clause, and Eighth Amendment sentence grounds.
Issues
| Issue | State's Argument | Kihega's Argument | Held |
|---|---|---|---|
| Whether accomplice (Washington) testimony was sufficiently corroborated | Physical and circumstantial evidence (ballistics, phone ping, casino receipts, victim accounts of distinct acts, and Kihega’s incriminating jail calls) tended to connect Kihega to the robbery | Corroboration was insufficient: evidence only showed the robbery and its circumstances, not a connection between Kihega and the crime | Affirmed — jury could find corroboration sufficient as a matter of fact; circumstantial evidence and defendant’s own statements satisfied SDCL 23A-22-8 |
| Admissibility of 24 jail-call audiotapes | Tapes were relevant to consciousness of guilt and cover-up; defendant had no expectation of privacy (calls were monitored) and probative value outweighed prejudice | Tapes were irrelevant or unduly prejudicial and protected by spousal privilege | Admitted — court did not abuse discretion; no expectation of privacy and Rule 403 balanced in favor of admission |
| Admissibility of April 16 recorded exchange (wife’s question and Kihega’s reply) | Wife’s question provided context; Kihega’s answer was adoptive/non‑hearsay and relevant to rebut alibi | Wife’s question isn’t an assertion so cannot be adoptive admission; answer was improper rebuttal | Admitted — wife’s question was non‑hearsay/context; Kihega’s answer relevant to rebut alibi and properly admitted |
| Detective Neal’s testimony that he corroborated Washington with Two Hearts (without repeating Two Hearts’s statements) — Confrontation Clause issue | Testimony rebutted defense implication that Neal did nothing; not hearsay and not offered for truth of Two Hearts’s statements; Neal was cross‑examinable | Allowed an accomplice to corroborate another and deprived Kihega of confrontation rights because Two Hearts was unavailable | No Sixth Amendment violation — limited testimony was non‑hearsay and admissible to rebut defense implication; defendant could cross‑examine Neal |
| Eighth Amendment/challenge to sentence as cruel and unusual | The robbery was aggravated (guns fired, victims endangered); sentence was within statutory maximum and defendant eligible for parole | Sentence grossly disproportionate compared to local norms and compared to co‑defendant Washington’s lower sentence | Affirmed — sentence not grossly disproportionate and trial court did not abuse sentencing discretion |
Key Cases Cited
- Smithers v. State, 670 N.W.2d 896 (S.D. 2003) (standard for accomplice corroboration; sufficiency is a jury question)
- Nelson v. State, 310 N.W.2d 777 (S.D. 1981) (circumstantial evidence and post‑crime association can corroborate accomplice testimony)
- McKercher v. State, 332 N.W.2d 286 (S.D. 1983) (no spousal‑privilege protection where detainee knew calls could be monitored)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause framework for testimonial hearsay)
- Chipps v. State, 874 N.W.2d 475 (S.D. 2016) (Eighth Amendment disproportionality review; de novo)
- Rice v. State, 877 N.W.2d 75 (S.D. 2016) (analysis for comparing offense gravity to sentence severity)
- Davi v. State, 504 N.W.2d 844 (S.D. 1993) (harmless‑error rule for erroneously admitted hearsay)