ANDERSON v. STREETERANDERSON v. STREETER
MATTHEW HAYS MCCOY, Custer, South Dakota; J. SCOTT JAMES of Southern Hills Law, PLLC, Custer, South Dakota, Attorneys for defendant and appellee.
[¶1.] David Streeter shot Kelly Anderson in the chest after Anderson confronted him at his home. Anderson filed a civil lawsuit against Streeter. Streeter moved to dismiss, claiming that he acted in self-defense and was immune from civil liability under
Factual and Procedural Background
[¶2.] Vivos xPoint Investment Group, LLC (Vivos) is a community of decommissioned military bunkers located outside of Edgemont. In July 2023, Streeter purchased a bunker and began preparations to move in with his family. After moving into the bunker, Streeter began having problems with the people who managed the Vivos community. He testified that after reporting problems with his septic system to Vivos management, Vivos employees were continually “circling my bunker and facing my bunker and actively filming us” as retaliation for making the complaint. Streeter also testified that Vivos employees were frequently “flipping us off. Just making signs with their - - with their hands as they’re driving by, things of that nature, speeding up and down the road” and making lewd gestures in front of
[¶3.] Streeter testified that on August 23, 2024, J.R. Rodriguez, a Vivos employee, sped by Streeter’s bunker at a high rate of speed. Because Streeter’s prior attempts to involve law enforcement had not succeeded, he decided to take the initiative. Streeter got in his vehicle and followed Rodriguez. Streeter caught up to Rodriguez, opened the door on his vehicle, put his “hand on [Rodriguez’s] chest, [and] pushed him into his seat.” Streeter explained that he told Rodriguez that he was tired of Vivos employees speeding past his bunker.
[¶4.] Roughly forty-five minutes after Streeter’s confrontation with Rodriguez, Rodriguez and another Vivos employee, Tom Dundas, drove to Streeter’s property. Dundas explained to Streeter that Vivos employees were working on a road near Streeter’s bunker. Streeter demanded that Vivos employees stop driving by his bunker at high speed. Although highly charged, this confrontation did not escalate into physical violence.
[¶5.] Dundas and Rodriguez returned to their worksite and told Anderson about their interactions with Streeter. Anderson became upset with Streeter’s behavior and decided to confront Streeter himself. Anderson sent a series of text messages to Chris Yellow Thunder, a mutual acquaintance of Streeter and Anderson, describing his intentions. The text message exchange, which was admitted at the immunity hearing, read as follows:
Anderson: I’m about to fuck his ass up.
Anderson: I have[n’t] said anything about this to any one but you. Anderson: You might want to come down to Streeter’s.
Yellow Thunder: Dave is my guy Kelly… beef needs to go away… I’m coming down.
Anderson: I’m sorry.
Anderson: I’m almost there.
Anderson: What he did isn’t right.
Anderson: And I’m gonna educate this mother fucker.
[¶6.] After this exchange with Anderson, Yellow Thunder called Streeter, told him what Anderson had said, and began driving to Streeter’s bunker. Streeter received Yellow Thunder’s warning roughly forty-five minutes after his confrontation with Dundas and Rodriguez. Streeter heard a vehicle coming while he was on the phone with Yellow Thunder. Anderson arrived in a skid steer, which he drove to the edge of Streeter’s property. Anderson began yelling threats at Streeter from the roadway in front of Streeter’s bunker.1 In response, Streeter drew his handgun and pointed it at Anderson.2
[¶7.] Streeter warned Anderson to leave the premises several times. Anderson asked Streeter, “Have you ever killed someone?” After Streeter responded that he had, Anderson stated that he had killed somebody “with his bare
[¶8.] Streeter shot Anderson once in the chest. Streeter testified that he fired as Anderson advanced, and they were only a foot or so apart. He testified that he did not believe the fence around his property diminished the threat Anderson posed because “the fence is only four foot high.” Streeter estimated that nearly an hour and a half had passed between his initial confrontation with Rodriguez and Anderson’s arrival at his bunker.
[¶9.] After shooting Anderson, Streeter kept his handgun pointed at Anderson and instructed his daughter to notify law enforcement and to grab a “medical bag.” After Anderson became immobilized, Streeter, an emergency medical technician, rendered medical aid by placing compression on the wound to control the bleeding. Streeter and Yellow Thunder loaded Anderson into Yellow Thunder’s pickup and transported him part of the way to town to meet the ambulance. Streeter continued to render assistance as Anderson was transferred to the ambulance. Anderson survived the gunshot.
[¶11.] In October 2024, Anderson filed this civil lawsuit, claiming Streeter was liable for assault and battery. Streeter answered and moved to dismiss, asserting that he was immune from civil liability under
[¶12.] In early March 2025, the circuit court held a hearing on the outstanding motions. It denied Anderson’s motion to have his requests for admission deemed admitted, granted Streeter’s request for an immunity hearing, and denied Streeter’s motion to stay discovery (but limited discovery to the issue of
[¶13.] On May 16, Anderson filed a motion “to address pre-evidentiary hearing matters,” and a motion for a continuance. In both motions, Anderson made various requests related to the grand jury transcript that Streeter had previously cited. Anderson requested:
(A) Defendant immediately provide all exhibits referenced in the pleadings; (B) Plaintiff have access with immunity of any statutory violation to view the [grand jury transcript] in preparation of the Evidentiary Hearing; (C) Defendant answer how it obtained the [grand jury transcript] initially; and (D) Defendant be barred from utilizing the [grand jury transcript] for impeachment or any other purpose in this proceeding.
In Anderson’s motion for a continuance, he requested that, instead of conducting the immunity hearing on May 19, the circuit court should hold a telephonic hearing limited to the issues he raised concerning the grand jury transcript.
[¶14.] The circuit court held the immunity hearing on the scheduled date and addressed Anderson’s motions at the outset. The circuit court inquired why Anderson’s counsel waited until days before the immunity hearing to raise issues regarding the grand jury transcript. Anderson’s counsel admitted: “I waited in preparation for this proceeding and admittedly, I apologize to the [c]ourt for that delay, I did not immediately start preparing for this hearing after the last hearing, and I waited to start preparing and I admit to the [c]ourt that that was delay on my part.” After concluding its discussion about the grand jury proceedings with both parties, the circuit court ruled that the grand jury transcript was inadmissible and
[¶15.] At the end of the immunity hearing, the circuit court concluded that Streeter was justified in using deadly force in self-defense under
Decision
1. Whether the circuit court abused its discretion when it denied Anderson’s motion for a continuance.
[¶16.] Anderson claims the circuit court abused its discretion in denying his motion for a continuance. He contends that the immunity hearing should have been continued because he did not have the opportunity to view the entire grand jury transcript. He claims a continuance would have prejudiced neither party, that he did not delay in bringing the motion, and that he was prejudiced by the circuit court’s denial because there was potentially “impeachment testimony, additional witnesses, or other valuable informat[ion]” in the grand jury transcript.
[¶17.] “A trial court’s decision to grant or deny a continuance is reviewed under an abuse of discretion standard.” VOR, Inc. v. Est. of O’Farrell, 2025 S.D. 2, ¶ 35, 17 N.W.3d 252, 261 (quoting People ex rel. L.N., 2022 S.D. 8, ¶ 41, 970 N.W.2d 531, 544). “An abuse of discretion ‘is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary and unreasonable.’” Melius v. Songer, 2025 S.D. 51, ¶ 52, 25 N.W.3d 801, 817 (quoting Hiller v. Hiller, 2018 S.D. 74, ¶ 19, 919 N.W.2d 548, 554). “The granting or refusing [of] a continuance rests in the sound discretion of the court
[¶18.] This Court has established four considerations that may guide a circuit court’s assessment of a motion for a continuance:
(1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court’s refusal to grant the continuance; and (4) whether there have been any prior continuances or delays.
Id. at ¶ 36 (quoting Meadowland Apartments v. Schumacher, 2012 S.D. 30, ¶ 17, 813 N.W.2d 618, 623).
[¶19.] The immunity hearing was scheduled for May 19, 2025, a Monday. Anderson filed his motion on May 16, 2025, the prior Friday. Anderson’s counsel knew the grand jury transcripts existed well before the time he filed his motion for a continuance. As Anderson’s counsel candidly admitted, “I waited in preparation for this proceeding and admittedly, I apologize to the [c]ourt for that delay, I did not immediately start preparing for this hearing after the last hearing and I waited to start preparing and I admit to the [c]ourt that that was delay on my part.” Based on the timing of Anderson’s submissions and his counsel’s admissions to the circuit court, Anderson’s counsel did not properly utilize the time the circuit court afforded him to prepare for the immunity hearing, and the motion for the continuance was an attempt to remedy his poor planning. See State v. Moeller, 2000 S.D. 122, ¶ 7, 616 N.W.2d 424, 431 (“A continuance may properly be denied when the party had
[¶20.] Anderson’s counsel had sixty days to conduct discovery and to discern whether the grand jury transcript contained the type of information he suggested. He did not avail himself of that opportunity. At Anderson’s request, the circuit court ruled that the grand jury transcript was inadmissible and prohibited Streeter from relying on it during the immunity hearing because Streeter did not provide the transcript in response to Anderson’s discovery request.3 Given these circumstances, the circuit court did not abuse its discretion when it denied Anderson’s request for a continuance.
2. Whether the circuit court erred when it concluded Streeter was immune from civil liability under SDCL 22-18-4.8.
[¶21.] This Court reviews a circuit court’s application of
[¶22.] For a defendant to avail himself of the immunity described in
A person is justified in using or threatening to use deadly force if the person reasonably believes that using or threatening to use
deadly force is necessary to prevent imminent death or great bodily harm to himself, herself, or another, or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this section does not have a duty to retreat and has the right to stand his or her ground, if the person using or threatening to use the deadly force is:
(1) Not engaged in a criminal activity; and
(2) In a place where the person has a right to be.
[¶23.] The circuit court heard Streeter’s testimony and found him credible. See News Am. Mktg. v. Schoon, 2022 S.D. 79, ¶ 32, 984 N.W.2d 127, 137 (“Determining the credibility of the witnesses is the role of the factfinder,” and this Court gives “[d]ue regard . . . to the opportunity of the [circuit court] to judge the credibility of the witness.” (citations omitted)). That testimony established that Anderson notified Yellow Thunder via text message that he intended to attack Streeter physically. Yellow Thunder relayed Anderson’s threats to Streeter. Anderson confirmed his aggressive intentions when he began yelling threats upon his arrival at Streeter’s home. Anderson then boasted that he had killed somebody “with his bare hands.” After making these threats, Anderson lunged toward Streeter, who responded to the threat with a single shot. Anderson did not present any witnesses or other evidence to controvert Streeter’s testimony and evidence.
[¶25.] Anderson contends that Streeter had a duty to retreat because he “was previously engaged in criminal activity, i.e., assault of [Rodriguez].” The circuit court correctly concluded otherwise.
[¶26.] The circuit court’s factual findings are not clearly erroneous, and it correctly applied the statutory framework in
[¶27.] In his appellate brief, Streeter requests appellate attorney fees. Under
[¶28.] JENSEN, Chief Justice, and SALTER and DEVANEY, Justices, and KLINGER, Circuit Court Judge, concur.
[¶29.] KLINGER, Circuit Court Judge, sitting for GUSINSKY, Justice, who deemed himself disqualified and did not participate.