*1
STATE of South Appellee, BUCHHOLD,
Ralph Defendant Appellant.
No. 23839.
Supreme Dakota. Court South Aug.
Argued
Decided Jan. *3 General, E. Long, Attorney
Lawrence Blair, Attorney Steven R. Assistant Gener- al, Pierre, Dakota, Attorneys South plaintiff appellee. and Utzman, Smoot, Brian L. Alan L. Smoot Utzman, Dakota, Rapid City, & South At- torneys appellant. for defendant and GILBERTSON, Chief Justice. (Buchhold) Ralph [¶ 1.] Buchhold was by jury convicted of one count of second degree rape, six counts of degree third rape, and four counts of sexual contact with a child age under the of sixteen. He years was sentenced to 25 in the state penitentiary degree on the rape second years count and 15 each of the third .on degree rape and sexual contact counts. The sentences are to be served consecu- tively. affirm. We AND PACTS PROCEDURE (hereinafter child, A [¶ 2.] referred to A.B.), Ralph was born to and Kathleen August Buchhold on During life, initial of AB.’s Buchhold was largely absent from the home. He served duty overseas as an active member of the Air United States Force. discharged
[¶ 3.] was the Air January Force on At joined time he family Rapid City, his South Dakota. During years, the next few A.B., who was seven when her father re- Force, Air enjoyed turned from the a fair- ly normal upbringing. The Buchholds wel- daughter family comed a second into their in 1998. AB.’s life began change birthday. after her eleventh During Buchhold, Thus, time, father, began an ordeal for A.B. began A.B.’s
this years. During period, four lasted her. This advances towards make sexual and rape Buchhold’s sexual abuse into A.B.’s came started when Buchhold daily oc- daughter escalated to an almost touching day began her room one It was not until A.B. was 15 currence. of her area on the outside the breast that she able to her fear was overcome Athough A.B. did understand clothes. to report humiliation order the abuse act at this inappropriateness from Buchhold. On December time, her She at- it made uncomfortable. Rapid officer City police dispatched from Buchhold. away to slide tempted response the Buchhold residence in again once made persisted reported rape. A.B. the out- inappropriate contact with *4 initial episode of her clothes. This February side [¶ 9.] On Buchhold A.B.’s left room af- by Pennington County ended when Buchhold was a indicted him away. degree at him yelled Jury ter and shoved Grand on one count of second she rape, degree rape six counts of third and The first was followed encounter [¶ 5.] with a minor. four counts of sexual contact by where Buch- another AB.’s bedroom immediately A warrant was issued for pants. AB.’s placed his hands inside hold arrest. Aware that he was Buchhold’s this time she Buchhold told A.B. at arrested, Buchhold left South about to be episode his pleasure. made for was Dakota He “photo to do shoot.” traveled Buchhold again when A.B. shoved ended to under an assumed name. places various away. birth, arrange by A he tried Canadian Following episodes, initial these 6.] [¶ home purchase the of a in Canada Kathleen, mother, A.B. told her about Keyes. the Thomas Before he name doing her. what her father had been Canada, however, appre- reached he was the confronted Buchhold about Kathleen Jersey May 2004.1 hended in New on away from the but came meet- allegations, on appearance Buchhold made his initial distrusting meeting, A.B. After this ing a Pennington County all before charges keep told A.B. that if she would Magistrate 2004. His trial on June her shut the sexual advances would mouth July commenced on However, again. happen not within trial, A.B. During the testified [¶ 10.] of time Buchhold’s behavior period short rape separate instances of to at least ten advances became and sexual resumed by her perpetrated upon or sexual contact extreme. more her In addition A.B. testified father. was old A.B. still eleven instances of through like raped by time she her father. the first was from a rape sexual contact escalated and into his room Buchhold ordered A.B. weekly occurrence to fre- once twice AB.’s and daily. where he removed clothes every day other or almost quent as her, crying, to have kicking Strong, pediatrician specializing forced Dr. Lori with him. A.B. continued who suffer vaginal sex the treatment children abuse, pain that testified complaining physical about the sexual other cry that a causing by her. Buchhold the State penetration was direct examination finally of A.B. revealed pleas vaginal A.B.’s subdued examination dismissed hymenal irregularity. The doctor asserted by squeezing his hand struggling her exist- irregularity could not have ceased. her throat until she around given jury pattern "flight” in- struction. 1. His was excused, not him su- ed from birth and was attributable to saw shackled under the any infirmity sort of natural such as a pervision deputy. Though defense In Dr. urinary Strong’s tract infection. mistrial, counsel did not ask for a did he irregularity hymenal A.B.’s was opinion discuss the incident with the circuit court. injury. penetration to a She stated due court, incident, circuit The aware injury that this kind of consistent with jurors noted that had re- immediately history experiencing someone of sexual re- turned to the courtroom without by relayed like that A.B. abuse sulting Considering effect. there no to be trial, gave Buchhold, Prior to prejudicial consequence testimony of its notice intent to elicit about judge incident. dismissed the nature allegedly statements of a sexual during Finally, closing argu- made to young other women Buchhold. ments, attorney the state’s recalled for The circuit that the court ruled statements jury testimony of Dr. He Strong. they not since would be admissible were specifically recounted doctor’s discus- faced; charges similar to sion about hymenal irregularity. thus, being unduly prejudicial and not evi- attorney Strong’s state’s reiterated Dr. motive, intent, opportunity, prep- dence of contention irregularity that the was consis- *5 aration, or of mistake or absence accident might tent with what one find a child See SDCL 19- charges. in relation to the who had been of prolonged the victim sex- (Rule 404(b)). 12-5 ual abuse. He concluded this discussion trial, During [¶ 12.] State by stating piece that it was another of the a played videotape of an interview of Buch- puzzle convincing beyond evidence Pennington by County hold conducted rape reasonable doubt that had occurred. Deputy, Walker. Due Sheriffs Misti to a objection Defense had no counsel to the jury redaction error the was allowed to attorney’s state’s statement. portion videotape hear of the includ- guilty was found all [¶ 15.] Buchhold ed the statement from Walker to Buch- July Sep- eleven counts on 2005. On hold, you say “Her friends make these 6, 2005, given tember was he the maximum sexual com — ....” Defense counsel moved sentence on all counts to be served consec- contending a mistrial that the intent of utively; thus, totaling years. 404(b) ruling the court’s at the Rule hear- ing had been violated. circuit court appeal, [¶ 16.] On six raises ground denied the motion on the that the issues: fragmentary did not statement violate the 1. Whether properly Buchhold was 404(b) intent of ruling the Rule and thus convicted of sentenced on the unduly prejudicial not was Buchhold’s mutually exclusive crimes of third ability to have a fair trial. degree rape and sexual contact with Following [¶ the conclusion of age minor under the of sixteen. day trial, first Buchhold was escort- sentencing 2. Whether Buchhold to the by ed the courtroom a uniformed count, maximum allowable on each deputy apparently sheriff. placed He was consecutively, to be served consti- in restraints in preparation transport unusual punishment. tutes cruel and County jail back to the Pennington after 3. statutory 180-day Whether the rule leaving the courtroom. He was then taken was violated. by the an deputy to elevator. await Be- elevator, fore Whether circuit court Buchhold could erred board jurors, inadvertently four who grant had been when it failed Buchhold’s ” Cottrill, 38, 6, v. a mistrial the State dard.’ State SD
motion for when portions a video- (quoting to redact of 660 N.W.2d State v. failed jury. was shown to the tape that 1999 SD 600 N.W.2d Sparks, 553). “The denial a motion for of mistrial ability to have a Buchhold’s 5. Whether under is reviewed an abuse discretion unduly prejudiced was fair trial Janklow, State standard.” v. him jury members saw when ¶ 42, (citing 693 N.W.2d State v. custody of while in the in restraints ¶9, Ball, 2004 SD 675 N.W.2d deputy. a sheriffs 197). an pre Where issue has been attorney com- the state’s Whether objection trial, by served Court’s misconduct prosecutorial mitted review is limited consideration wheth testimony referencing expert plain circuit court er the committed error. during closing arguments. Nelson, 124, ¶ 7, State v. 1998 SD OF Satter, STANDARD REVIEW 439, 443 (citing N.W.2d State 9, ¶ 11, 249, 251). suf determining “In review, the of the evidence on ficiency ANALYSIS AND DECISION is there is evi question presented whether which, if in the record believed dence 1. Whether Buchhold finder, to sustain the fact sufficient properly convicted of sentenced beyond a reasonable finding guilt mutually on the exclusive crimes of Lewandowski, doubt.” degree rape and sexual third con- (S.D.1990). This 343-44 age tact with minor under statutory sentencing within Court reviews sixteen. limits the abuse of discretion stan argues 19.] Buchhold there *6 73, McKinney, v. 2005 SD dard. State not sufficient evidence to find support is ¶ 471, 10, v. (citing State 699 N.W.2d 476 separate on the ing guilt of eleven counts 46, Goodroad, ¶ 40, 1997 563 N.W.2d SD Specifically, which he was convicted. for Anderson, 126, 135 v. 1996 SD (citing State only evidence sup Buchhold contends the ¶ 402)). 46, 30, 395, give 546 N.W.2d “We multiple very counts was “the porting sentencing decisions ‘great deference testimony and general” “uncorroborated” ” Garber, made v. by trial courts.’ State of A.B. Buchhold convicted four of was ¶ 13, 320, 2, 323 2004 674 SD N.W.2d a minor. He counts of sexual contact with Milk, v. 2000 SD (quoting State only supports testimony that AB.’s asserts Gehrke, (citing 607 17 State v. N.W.2d of He two counts sexual contact. then (S.D.1992))). 421, 422 Howev 491 N.W.2d only under which more concludes basis er, challenges a sentence when a defendant be would could rationalized counts our re Eighth grounds, Amendment sexual contact occurred coincident assume using dispro- gross view conducted is rape. incidences of asserts with in portionality standard set out State not intend for legislature that our did sex ¶30, Bonner, 17, 577 1998 SD N.W.2d rape and crimes to be cumula ual contact Court reviews ‘the determi “[T]his tive. 180-day period has nation of whether that under Buchhold reasons expired good as what as well constitutes 22-22-7,2 contact with child under stan- sexual delay cause for a de novo SDCL spouse “Any per- person, person’s than if the provides part: other that SDCL 22-22-7 in older, son, age age person is under the of sixteen years of who know- other sixteen or felony....” guilty a Class ingly engages another 3 in sexual contact with 822 age mutually of sixteen is whether the circuit court plain
under committed rape that of offense from under exclusive error all entering convictions on points 22-22-1.3 Buchhold to the Satter, SDCL charges. See SD usage of the “sexual contact” in term (1) N.W.2d at 251. “Plain error requires 22-22-7 its definition and under SDCL (2) (3) error, plain, affecting that is sub- 22-22-7.1,4 the basis for the mu SDCL rights; only may stantial then and “sexual exclusivity “rape” tual con Court discretion exercise its to notice the by our legislature. tact” crimes as intended ‘seriously error if it the fair- affectfs] litany Buchhold cites of cases ness, integrity, reputation public judi- ” that by this Court resulted decided Nelson, cial proceedings.’ 1998 SD mutually reversal of for exclu convictions (citation omitted). at 443 N.W.2d the same sive offenses based on set of A.B. testified the first time Perovich, facts. See State v. her room came to and touched Dillon, 12; 632 N.W.2d 2001 SD manner, her a sexual she pushed him (holding N.W.2d convictions away. A.B. then stated that her father rape pedophilia based on one act during initiated a sexual second contact against prohibition violated the double this incident. A.B. later testified that the jeopardy legislature spe where the did not next advances, time A.B. sexual made he cifically multiple punishments intend for placed his inside her pants. hands conduct); C.H., same Interest of constitutes three acts sexual contact 309 (vacating rather than the two Buchhold claims. contact two convictions for sexual inciden to rape legislature tal because the did not also [¶ 24.] Buchhold fails to address intend for punishments cumulative one magnitude the sheer of the number of penetration); act of sexual State v. Bram against sexual acts he committed A.B. A.B. mer, (S.D.1981) (holding testified that when her father started sexu- mutually that convictions for the exclusive ally abusing frequency her it was with a of rape crimes and sexual contact were week, once or twice a “not that often.” substantially prejudicial to the defendant progressed Later it to two or three times rule). plain error week the time she eighth grade *7 occurring it was somewhere [¶ Buchhold failed to seek 22.] every day day. between every other any at dismissal trial of of the counts A.B. asserts that total the number of times under that he claims to have been now she was improperly sexually by must abused her father charged. We therefore perspective consider this issue the of were too from numerous for her to count. offenses, ty marriages 3. At the time of Buchhold's SDCL within are which the laws 22-22-1(2004) provided part: "Rape in is an pursuant § of this state declared void to 25- penetration accomplished act of sexual 1-6, with incest; which is also defined as ...” any person following of the cir- cumstances:” offenses, 4. At the time of Buchhold’s SDCL (2004) provided part: 22-22-7.1 in "As used (2) force, coercion, Through term, contact, the use of or chapter, in this the sexual great bodily threats of immediate and harm any touching, amounting means not rape, to against persons other the victim or within genitalia ... the breasts of female or the accompanied by the presence, ap- victim's any person or anus of with the intent execution; parent power of or gratify arouse or sexual the desire of either party....” persons "legally If not who are married degrees consanguini- who are within
823 accept suggest dispro- cumstances fail to gross Court must [¶ 25.]This evidence, infer most favorable and the portionality, the our review ends. it, will can which
ences that be drawn Bonner, 30, 17, 1998 at SD 577 N.W.2d Buchholz, v. 1999 a verdict. State sustain (citing 501 Michigan, 580 Harmelin (citation 905 957, 1000, 2680, 2704, S.Ct. U.S. omitted). pass will not Court (1991)). Only L.Ed.2d when or the evi credibility weigh of witnesses appears grossly disproportional sentence Id. determining sufficiency. its dence inter/intra-juris- this Court conduct an will (citation omitted). sentencing analysis or oth- dictional assess jury considered Clearly, 26.] [¶ Harmelin, (citing factors. Id. 21 er testimony It is en- A.B.’s to be credible. 1000, 111 S.Ct. at U.S. given hundreds tirely possible 868). L.Ed.2d at upon A.B. perpetrated of sexual abuse acts apply test set 30.] order to [¶ father, jury may have inferred by her case, first out Bonner to this we must sexual least one additional count of that at gross if dispropor- the issue of determine Thus, the circuit court contact existed. im tionality is confined to the sentences accept- not be to be error for could held or posed each individual conviction jury’s of fact to the finding ing it extends the consecutive whether sufficiency supporting eleven evidence The sentencing scheme. United States separate counts. provided a clear Supreme Court has not sentencing Buch- Whether [¶ v. An question. Lockyer answer to this to the maximum allowable on hold drade, 123 S.Ct. U.S. count, each to be served consecu- (2003). However, 155 L.Ed.2d tively, cruel and unusu- constitutes pertaining take note of the statement we punishment. al early to this issue from case 28.] Buchhold received Vermont, 144 U.S. 12 S.Ct. O’Neil eleven maximum available sentence on all (1892). Though L.Ed. 450 convicted; thus, for which he was counts case, holding central years. eligible will totaling 175 He not be recognized of a de length Court until half of his parole he has served may be attributable fendant’s sentence Buchhold was 50 years. sentence 87½ which of the number of crimes committed therefore old sentenced. He con proportionality does not raise itself life that he has received de facto argues cerns: cruel and unusual sentence otherwise in vio
punishment given the circumstances punishment imposed by statute Eighth Amendment. lation respondent, which the the offence with O’Neil, cannot to be charged, be said *8 Bonner, In we set out If he has sub- oppressive. excessive by used this Court proportionality test it is jected penalty, to a severe himself to a sen challenge to review a defendant’s has simply because he committed grounds. Eighth on Amendment tence many offences. It would great such proportionality challenge To assess person assail scarcely for competent first determine whether the sentence we constitutionality pre- the statute disproportionate. To appears grossly on burglary, for scribing punishment this, conduct accomplish we consider the so he had committed ground conduct, involved, past relevant that, punishment if many burglaries Legislature utmost with deference him, might be inflicting cir- were on he sentencing court. If these each and the 824 omitted).
kept prison life. The fact mere Recently, the Arizona court con punishments may that cumulative be im- cluded that even when consecutive sen posed for distinct offences in the same tences expectancy, exceed life it cannot be prosecution upon is not material argued that a sentence that is not alone question. grossly disproportional becomes so be 331, cause it is 696-97, lengthy aggregate Id. at 12 S.Ct. 36 with other L.Ed. sentences. Berger, 473, State v. 212 Ariz. (2006) (citation omitted). 134 P.3d 384 lower [¶ 31.] Several courts have dealt (Colo. In People, Close v. 48 P.3d with this issue and concluded that 2002), the Supreme Colorado Court held gross disproportionality applies review that cumulative sentences are not reviewa imposed the sentence for the individual in aggregate. ble In August, State v. crimes rather than the aggre consecutive (Iowa Aiello, gate. 1999), United States v. 864 F.2d the Iowa (2dCir.1988), Supreme the court also took Court noted that Eighth an O’Neil, notice of the reasoning from hold Amendment claim does not arise where a ing proportionality that a analysis did not defendant who commits multiple crimes is apply to a defendant’s life sentence with punished severely more than a defendant parole out plus 140 consecutive be who commits one. cause analysis properly focuses on the We conclude that the im applied sentence specific for each crime position of sentencing consecutive is a dis and not sentencing. cumulative In sup cretionary matter for sentencing court porting the proposition, same the court in in line with SDCL 22-6-6.1.5 In State v. Schell, United States v. 692 F.2d Blair, justified we part the circuit (10thCir.1982) concluding reasoned that imposition court’s of five eight consecutive otherwise would mean that any sentence year against terms by defendant rea regardless length could be deemed cruel soning that each of the five counts was punishment and unusual imposed individual and specific to one of his five already defendant serving lengthy sen ¶75, 66, victims. 2006 prior tences for Similarly, convictions. 72. The same applies rationale to this Ramos, court in Pearson v. 237 F.3d case because even though A.B. was the (7thCir.2001) predicted the absurd re only victim crimes, of Buchhold’s in each sult prisoners generate would col- stance of sexual abuse was a separate of Eighth orable Amendment claims sim fense committed at different times.
ply committing more crimes. [¶ 34.] Defense counsel argues that in jurisdictions Other have also imposing sentence the circuit court “disre- considered the issue of proportionality garded” psychosexual evaluator’s con- where sentencing consecutive is involved. clusions that Buchhold Supreme The Arizona does not have “a Court has concluded chronic objectively that defendant’s have no sexual in young constitutional interest right to children” sentencing “objectively concurrent or an multiple in- measured separate Jonas, crimes. State v. terest Ariz. sexual violence.” According to (1990) (citations 792 P.2d evaluator, Buchhold’s test sug- scores *9 5. At the entered, time of Buchhold's conviction SDCL judgment or sentence was the (2004) provided: 22-6-6.1 judgment may or sentence be that the im- prisonment If a defendant has been convicted of on two of the offenses or con- offenses, regardless or more may of concurrently when the victions run or consecu- offenses were committed tively or when the at the discretion the of court. objectives legisla a tence furthers those the that he is “low risk recidi- gested Nonetheless, 29-30, it must be noted sought vism.” ture to advance. Id. at was pref- the entire assessment 1190, 155 evaluator’s at S.Ct. L.Ed.2d 108. that Buchhold’s with the comment aced legislature [¶ 37.] The has determined is as an indicator
“continued denial
viewed
sex
against
crimes
children are a seri
responsibility
to
for his
of
failure
take
his
public
punished
ous
concern and should be
a
problems and
lack of
sexual behavior
Guthmiller,
severely.
State v.
2003 SD
Thus,
assessment.”
forthrightness
¶ 48,
311. At the time
a
showing Buchhold
the test scores
charged,
degree rape
Buchhold
second
low
are of dubious worth.
risk
25-year
carried maximum
sentence while
During
sentencing hearing,
the
degree rape
of third
and sexual
crimes
in addition to
the circuit court stated that
contact each carried maximum sentence
trial, it
presented
at
consid-
evidence
years.
statutory sentencing
of 15
pre-sentence investigation and
ered the
crimes can
structure established
these
psychosexual
This evaluation
evaluation.
reasonably be construed to further
in “deep
that Buchhold is
denial”
revealed
public policy
through
State’s
of deterrence
perpetrated against
of the molestation he
Ewing,
correction
retribution.
See
responsibility
of
accepting
A.B. Instead
retribution, the State’s interest in deter- 14, ing September 2004 motion. ring such crimes. therefore conclude We 5, 10. October 2004: granting Order maxi- imposition case that of the this 13, 2004 September motion. charges mum for the individual is sentence 15, 11. December 2004: trial Original grossly disproportional not and our review date. Cancelled. trial date New is complete. this issue 20, April scheduled for 2005. statutory 3. 180- Whether 10, January hearing. 12. 2005: Status day rule was violated. January 21, 13. 2005: Buchhold files 19 argues pretrial that he motions. These motions request prejudice permit- is entitled to a dismissal with on include a for order ting to be transported all counts because the time between appearance medical examination. addi- initial and trial exceeded tion, request motions include statutory 180-day period provided under production records, medical re- SDCL 23A-44-5.1.6 The following ports, disclosure of State’s Rule chronology period Buch- between 404(b) evidence, State’s witness list appearance hold’s initial and trial: pretrial discovery. 1. 2004: June Buchhold makes his January 14. 2005: hearing. Motions appearance. initial February 15. 2005: files Rule Arraignment. 2. 2004: June 404(b) notice. July 3. 2004: Buchhold a re- files February 16. 2005: Motions hear- quest with circuit court for recusal ing. Honorable Mertin B. Tice (including at- removal affidavit March hearing. 17. 2005: Status tached). March 2005: Circuit order court (re- July hearing 2004: Status Department all Ser- Social records, to change presid- scheduled due pertaining vices A.B. re- ing judge). Buchhold, quested by be sent provides part: 6. SDCL 23A-44-5.1 (1) indicted, Every person (5) any ... brought offense trial If defendant is be- brought trial, shall to trial within one hundred running fore of the time for days, eighty comput- and such time shall be periods, extended excluded defen- provided ed as section. dant shall be entitled to dismissal with one-hundred-eighty-day period Such shall prejudice charged of the offense commence to run from the date the defen- required by joined other offense law to be has appeared judicial dant first before a charged. with the offense indictment, officer an ...
827 April re- 20 trial due to court for in-camera the date his serious the circuit view. problems required hospitaliza- health that tion. Defense counsel also made reference 21, hearing. 19. March 2005: Status many hearings the motions and status to 6, releas- April 20. 2005: Circuit court total, requested. he had defense coun- in- stating es memorandum the given sel did not believe that number have reviewed camera records been delays of defense initiated there was parties. and will released to the be justification for dismissal the 180- 6, to April Hearing 21. 2005: is held The day rule. circuit court concurred with 404(b) Rule notice. consider State’s defense counsel’s assessment of the merits 20, April second 22. 2005: Buchhold’s of a motion for dismissal based on a 180- trial Trial is continued due date. day rule violation on stating the record significant problems health proceedings are within the re- defense counsel. quirements of the statute. 11, May 2005: State for con- 28. asks Additionally, this Court has [¶ 45.] 8, tinuance of June 2005 trial date “ held, a defendant to a ‘[W]here assents unavailability due ex- of State’s delay period attempts and later to take pert, Strong. Dr. it, advantage of courts should be loathe to 13, May grants 24. 2005: Circuit court speedy find a violation of an accused’s trial trial continuance reschedules ” Cottrill, 38, 11, rights.’ 2003 SD 660 13, for July 2005. Weber, Hays at 630 v. (quoting N.W.2d 7, July 25. Circuit orders 2005: court 59, 23, 2002 SD transported Beynon, (quoting State medical examination. (S.D.1992))). nothing There is July 2005: Buchhold’s trial objected indicating record that Buchhold commences. April or failed to consent to the 20 continu- eighty-five Three hundred and Thus, 84-day period ance. between days passed Buchhold’s June between 20, 2005, April trial date on the second initial commence- appearance trial, on July the actual commenced However, July of trial ment on be excluded. should 23A-44-5.1(4) provides for condi- SDCL Further, days all but six 180-day tions under clock shall which 167-day peri- are excluded within period in these are be tolled. Included conditions final pretrial between a motion and its od request granted continuances pretrial Periods between a disposition. of the or de- with consent defendant disposition and its final are exclud- motion long counsel a written fense so there is 180-day computation. filed court. 23A-44- ed from SDCL order SDCL 5.1(4)(b). 23A-44-5.1(4)(a). 167-day excluded 21, 2005, began January when period argues that defense Buchhold filed his motion an order request counsel’s continuance transportation for medical ex- permitting trial date should not be April period excluded ends amination. The 180-day computation excluded from an order on the circuit court entered no filed because there was written order 7, 2005, motion. July granting Buchhold’s However, when the by the circuit court. remaining days added six When opened, addressed trial defense counsel period be- resulting the excluded 180-day specifically He made issue. dates, trial there is total of request for continuance of tween reference Anderson, days January time between excluded *12 13, 2005, (citations July 395, omitted). trial date on 2005. and the 401 N.W.2d pretrial 51.] The circuit court did [¶ Buehhold also made a acknowl- 2004, 13, for the the State’s September edge motion on redaction error. Howev- property. er, release of The cir- confiscated it went on to that point out the kind of this granted cuit court motion on October it to bar statements intended could be 5, time 2004. The excluded between these in a transcript found of the unedited video- addition, July 22 days. dates is on that tape and these statements were not filed for original defense counsel re- heard the edited version. The circuit judge assigned preside cusal to of the first court denied the motion because the intent granted The motion over the case. was 404(b) prior ruling Rule barring delay of hearing and resulted in to status compro- such statements had not been July an 12 days for additional mised. record does not indicate the Finally, excluded. there were two status court clearly circuit abused its discretion. hearings in 2004 that would in at result Therefore, we will not overturn the circuit day least one of excluded time each court’s decision on Buchhold’s motion. hearing. 5. Whether Buchhold’s abili- days sum of [¶ 48.] The excluded ty unduly to have a fair trial was comes to The time Buch- 209. between prejudiced when members of the appearance hold’s initial and trial less ex- jury saw him in restraints while in 176. days cluded is Since falls within this custody deputy. of a sheriffs no statutory provisions, there is basis argues [¶ 53.] Buehhold this dismissal on issue. jurors four restraints, when him in saw [¶ court 49.] Whether circuit the supervision deputy aof sheriff grant erred it failed to Buch- elevator, waiting while for an his presump hold’s motion for a mistrial when tion of compromised. innocence was portions failed to redact Buehhold did not move for mistrial at the videotape of a that was to shown However, time. he now contends that a jury. required mistrial to plain due error. argues 50.] Buehhold [¶ [¶ 54.] Buehhold cites State v. Moll fragmentary the a statement unredact- left man, 2003 674 29 ed in videotape him interview of proposition guard that courts must Deputy Walker violated the intent of the against prejudice arising when a defendant April ruling circuit court’s 2005 on the a jury is seen before under restraint or in 404(b) State’s notice. Rule He contends garb. However, prison this Court Moll- unduly prejudiced that he was since the “brief, man noted: meetings inadvertent jury statement, fragmentary heard this jurors between and a shackled defendant which was related to other com sexual are insufficient to prejudice.” show Id. allegedly ments that he made friends of Israel, (citing 27 672 Harrell v. F.2d A.B. (7thCir.1982) 637 (citing United States v. Trial courts have considerable discretion Figueroar-Espinoza, 454 F.2d 590 only granting denying or mistri- (9thCir.1972); Leach, United al, States prejudi- but in determining also (8thCir.1970), denied, F.2d cert. cial effect of a witness’ statements. U.S. Only S.Ct. L.Ed.2d 151 clearly when this discretion is States, (1971); abused will this court Hardin v. overturn the trial United F.2d (5thCir.1963))). court’s decision. alleged prosecutor made that Ball For now show issue, during closing argu- he statements improper on this error
there was reversible (2) (1) error, miscon- amounting prosecutorial ments there exists show that must However, (3) in- Id. unlike the affecting rights substantial duct. plain, that is nothing dis- stant case where that could be may exercise its that this Court such offered, in objection as an seriously if it construed the error cretion notice that the defen- fairness, public Ball Court concluded integrity, affected *13 objection an preserved during Nel- dant an judicial proceedings. of reputation ¶ 8, the son, at 443 off-the-record discussion because both omitted). it (citation and the defendant considered State in their Id. 14 n3. such briefs. We inad- The that the record shows 56.] [¶ must this consider issue therefore following the incident occurred vertent prosecutor’s the perspective the whether Buch- day’s proceedings trial first plain constituted error. statements transport to the awaiting back hold was jail. defense County When Pennington attorney es The state’s [¶ 60.] brought matter the atten- the counsel Dr. sentially findings the of restated court, he apparently the circuit tion of pen A.B. Strong. He stated that had prejudice of undue the existence doubted injury that could not have oc etrating for not to file a motion he elected since naturally nor existed from birth. curred Nevertheless, court the circuit mistrial. of report that there was “no He also stated that incident and noted was aware the that happened other incident any jurors had seen Buchhold the four who [A.B.].” to the courtroom. promptly returned that the Buchhold contends [¶ 61.] it appear court that did not circuit stated attorney’s improp- state’s statements were any caused concern
that
the incident
injury
the
A.B.’s
was
nature of
er because
that
jurors. Buchhold cannot show
as inconclusive and that
categorized
prejudice and
was
resultant
any
there
A.B.’s
A.B. told
had testified that
friend
plain
cannot establish there was
therefore
boys
had had
with two
in 2003.
her she
sex
error.
testimony,
Dr.
she stated
During
Strong’s
attor-
state’s
57.]
Whether
[¶
although
injury
diagnostic
was not
that
ney
prosecutorial mis-
committed
own, it
indica-
of sexual abuse on its
referencing
expert
conduct when
found
a child
of what could be
tive
testimony
during
closing
argu-
that of
relaying history
like
A.B.
ments.
jury
not
did or did
62.] Whether
[¶
argues
Buchhold
that the state’s
boys prior
that
had sex with
conclude
A.B.
attorney
improper
made
statements dur-
allegations
time the
were made
rape
to the
substantially
closing
ing
arguments
father,
possible
her
it is
it conclud-
against
ability to have
fair trail.
his
prejudiced
not “incidents that
that such acts were
ed
object
did
statements
attorney
to A.B.” The state’s
happened
However, he
at the time.
contends
injury
penetrating
merely concluded
a new standard
State
adopted
this Court
piece
puzzle
that showed
was a
Ball,
er I Buchhold’s Again, Id. do not condone life sentences without effectively three actions, I him to a life but cannot condemn and constitutes parole possibility reason, hope. For this we should without type This is the retribution. excessive vacate these “de facto” life sentences “generate[s] punishment excessive require judge impose remand to (Konen- Id. for the law.” disrespect long beyond that does not last sentence result). J., concurring kamp, “gasped his last the time has breath.” sentencing, the court should ‘general moral a defendant’s Disproportionality “examine 2. Gross habits, character, social environ mentality, disagree majori- I with the also tendencies, or inclina ment, age, aversion ty gross disproportionality analy- opinion’s crime, life, family, occupa to commit tion conducting gross disproportion- sis. When The tion, criminal record.’ previous review, ality should entail the review consider reha sentencing court should also sentence, aggregate not the individual sen- Lemley, prospects.” State bilitation majority opinion tence on each count. adopt the advanced appears position omitted). (internal rehabil citations What Blair concurrence as the method can a man have when prospects itation review gross disproportionality conduct a *15 incentive to rehabilitate? there is no defendant received consecutive when the light a at the generally be “There should ¶75, 73, 721 2006 SD N.W.2d sentences. no matter tunnel for human end of the J., concurring in re- (Konenkamp, at 73 past or how bad appears how bad he sult). creates a of this method Utilization he is.” Ganrude Web conduct reflects really could where no sentence situation ¶ er, 96, 29, 614 N.W.2d grossly disproportionate. to be appear ever (Amundson, J., should dissenting). We in the position I reiterate the advanced of less than impose meaningful sentence dissent, one we measure “[w]hether Blair hope light on and keep life to time, at a sand or one tree grain of going. re- a desert and a forest desert remains stated, ¶ (Sabers, Amundson As Justice 109 n. 33 a forest.” Id. mains J., concur- dissenting). Even the Blair though the result of this It seems as a time when may there be into rence concedes is to cast this individual sentence in the should be reviewed let him lan- the sentences dump human waste individually. Id. aggregate, opposed as finally totally de- there until he guish J., in concurring (Konenkamp, n. 22 his last composes gasped and has result). concur- the Blair Specifically, agree I that this should breath. cannot may appropriate provided rence it be severity of the sentence and be the when aggregate in the on view the sentences light that a should remain would hold However, that should be the basis judge specifically denial. years. to 175 The trial explained specif- the basis to quoted denying parole. who he had It should not be Dr. Gans Buchhold, "[i]f parole. recommendations to treat opportunity ic deny him even the treat- Ralph becomes amenable to and when may atone for his point at Buchhold some through relinquishment of denial.” ment may Without be rehabilitated. crimes majority opinion points out Buchhold is The Buchhold parole, it leaves even a chance "deep and not amenable “to treat- denial” having hope of reha- a chance of ever without Su- possibility of rehabilitation.” ment or the bilitating. may relinquish pra never 34-35. receiving to life in Buchhold amount[] sentences results sentence “consecutive prison.” type This is the of sentence initially Id. statute did not allow. aggregate. reviewed in that should be Conducting proportionality review in this fifteen-year ten sen- received encourages manner prosecutors charge sentence, twenty-five year tences and one many possible counts as ensure a consecutively. all to be served not higher appear gross- sentence that will sentence, 175-year which is amounts to a ly disproportionate. That violates the effectively three life sentences without spirit Bonner and law of the State of possibility of parole.9 Blair, Dakota. South See SD ¶ 109, 721 n. Looking (noting at each count N.W.2d at individual “the ‘Equal shows Buchhold received sentences each Law’ call words Justice Under statutory (Sa- just within the maximum. While this lofty inscription”) more than initially might reassuring, J., it demon- bers, Bonner, be dissenting) (citing reviewing 578). strates a concern when 12, 577 All this is that problem counts isolation. guarantees sentence Buchhold will not the statutes do allow a life sentence for housed, fed, medically be treated and bur- charged Buchhold’s crimes.10 The most when expense ied at State’s he dies in charged severe crime he was convicted Penitentiary. the South Dakota State degree rape, of is second which is Class
felony punishable twenty-five penitentiary. Examining
the state isolation, aggregate,
counts in rather in the fifty-years felony: imprisonment Buchhold was old he was Class B life in the eligible parole will sentenced. He not be penitentiary. may lesser state A sentence years. for 87 and we view the Whether given ½ felony. be for a B Class In addi- 175-year sentence as six or three life sen- tion, fifty a fine may thousand dollars *16 By tences is the time irrelevant. imposed; eligible parole, he will or 137 be dead (3) imprisonment felony: Class C life in the years old. ½ addition, penitentiary. state In fine of fifty may imposed; thousand be dollars provides, part: 10. SDCL 22-6-1 relevant (4) felony: fifty imprisonment Class 1 law, Except provided by felo- otherwise addition, penitentiary. the state In a fine following nies divided into the nine are fifty may imposed; thousand be dollars distinguished classes which are from each (5) twenty-five years felony: impris- Class 2 following penalties other maximum penitentiary. onment the state In addi- upon which are authorized conviction: tion, fifty may fine of thousand dollars be (1)Class felony: imprison- A death or life imposed; penitentiary. ment state A in the lesser felony: years imprison- Class 3 fifteen imprisonment sentence than death or life addition, given penitentiary. in the state may felony. ment In not be for a Class A addition, fifty thirty may a fine of a fine thousand dollars thousand dollars be may imposed; imposed[J