State v. Medicine Eagle

subsequent and its for- forgiveness Note’s

giveness compensation the ser- Nelson, to Dr. provided

vices Ann to payment by

Ann entitlement established evidence, convincing and that

clear and twenty-four- Dr. Nelson provided

Ann 27, 2007 to

hour-a-day care from October

October 2008. court’s Dr.

finding provided that Ann Nelson care from

twenty-four-hour-a-day October hospi- Dr. Nelson was

13 to while clearly ICU is erroneous.

talized part, affirm in reverse in

We therefore

part, remand to the trial court with to recalculate the award con-

instructions opinion.

sistent with this GILBERTSON, Justice, Chief ZINTER,

and KONENKAMP and MACY,

Justices, Judge, Circuit Court

concur. MACY, Judge, Circuit Court SEVERSON, Justice,

sitting for

disqualified.

2013 S.D. 60 Dakota,

STATE South Plaintiff Appellee, Darryn EAGLE,

Gabriel MEDICINE Appellant.

Defendant and

No. 26346.

Supreme Court of South Dakota.

Argued March Aug.

Decided

Marty Jaekley, General, J. Attorney Jasper, Kirsten E. Assistant Attorney General, Pierre, Dakota, South Attorneys plaintiff and appellee. Paul E. Massa, Jensen of Jensen & Win- ner, Dakota, South Attorneys for defen- dant and appellant.

GILBERTSON, Chief Justice. M.E.H. alleges she was kid- napped raped by Darryn Gabriel Med- Junior, Eagle, icine September In Eagle indicted, Medicine was but charges were later dismissed when testing DNA implicate failed to Medicine Eagle. the case reopened and the evidence obtained 2000 was using retested a new method of DNA test- ing. time, This testing revealed the presence of Medicine DNA. On 3, 2009, December grand jury indicted Medicine Eagle on charges various stem- ming from alleged rape. Further, Part II Information charging was filed Eagle Medicine as a habitual pur- offender suant trial, to SDCL 22-7-7. At the court admitted evidence of an involving incident S.M., Medicine Eagle and allegedly which occurred in as other acts evidence (Rule pursuant 404(b)). to SDCL 19-12-5 Additionally, the trial court permitted the testimony State to elicit from a forensic DNA analyst regarding the results of DNA testing performed in 2008 and even though steps some performed were by nontestifying analysts. The jury found Eagle guilty degree, raped M.E.H., rape According count of in the second her. one degree, rape Eagle count of the third threatened her throughout one age contact with a child under sexual incident. M.E.H. claims Medicine Ea- trial, kidnapping. separate In a gle drove her home after the rape. Medi- ha- jury that Medicine was a found cine disputes allegations. these Eagle appeals. bitual offender. Medicine home, When M.E.H. arrived at she told her raped. mother she had been FACTS September At 2:00 a.m. on 23, 2000, 15-year- September On hospital, M.E.H. was taken to the where Dakota, Winner, old M.E.H. was South rape she was examined and a kit was staying to attend a funeral. M.E.H. was rape collected. The kit evidence and in a grandmother, with her who lived hous- clothing subsequently M.E.H.’s were sent ing development just outside of Winner. to the South Dakota State Forensic Labo- approximately p.m., At 6:00 M.E.H. had ratory for testing. After M.E.H. was dis- 16-year-old intercourse with her sexual from the charged hospital, she was inter- Patrick Red Bird while the two boyfriend by viewed point law enforcement. At this Shortly thereaf- were alone at the house. time, in she did inform law enforce- brother, cousin, ter, M.E.H., her and her ment that she had sexual intercourse with her friend left the house and walked to prior alleged rape. Red Bird to the In p.m., At 10:30 approximately town. Eagle Medicine was indicted on walking home in order to began M.E.H. charges stemming alleged rape. from the p.m. make 11:00 curfew. her [¶ 5.] At the South Dakota State Fo- alleges M.E.H. that while she [¶3.] Laboratory, rensic Stacy criminalist Smith home, walking 23-year-old Medicine was serology testing to check for conducted the approached Eagle passenger and his her presence bodily of fluids on the evidence. Eagle’s give van and offered to Medicine conducting testing, While the estab- Smith recognized her a ride home. M.E.H. the presence bodily the on the lished fluids passenger, accepted and the ride. M.E.H. vaginal swab the underwear were Eagle proceeded drop claims Medicine rape collected as of M.E.H.’s kit. off at home. After passenger drop- the his However, Dakota prior to the South off, M.E.H. claims ping passenger the Laboratory did not do State Forensic back into town to Eagle Medicine drove result, testing. DNA As Smith sent buy gas beer at a station and then drove to swab, vaginal Eagle’s M.E.H.’s Medicine alley bowling the so M.E.H. could look for swab, sample to buccal and M.E.H.’s blood her cousin. M.E.H. was unable to When (formerly known as the Orchid Cellmark cousin, got locate her she back in Medicine GeneScreen) testing. lab in Texas for DNA that he could take her Eagle’s vehicle so time, At the Amber Moss worked At point, alleges home. this M.E.H. Medi- (Cellmark) at Orchid Cellmark foren- Eagle began driving erratically. cine De- In re- August sic scientist. Moss requests her taken spite repeated be by Moss ceived evidence sent Smith. home, Eagle M.E.H. asserts Medicine vaginal performed testing DNA drove to desolate field outside of Winner. swab, compared profiles it to the DNA field, Upon reaching alleges M.E.H. buccal obtained from away get she tried to run from van to the. sample. The swab and M.E.H.’s blood claims Medicine help. M.E.H. to obtain only profile DNA Moss was able Eagle caught dragged her and her back to was consistent with alleges during testing the van her hair. Medi- M.E.H. sent these profile. cine then forced her into the van M.E.H.’s DNA Moss Dakota male that obtained at the South was Cellmark results to Smith Laboratory. inqui- 2001 to Red Bird. Smith then made Forensic DNA-testing ries about whether a new thereafter, sent a Shortly Smith testing, method known as Y-STR which underwear to Cell- cutting from M.E.H.’s was unavailable when evidence was testing. performed Moss mark for DNA originally might produce tested in compared testing sample DNA on the additional results. The South Dakota profiles obtained from the under- the DNA Laboratory State Forensic did not do Y- cutting profiles wear to the DNA time, testing point STR so Smith Eagle. M.E.H. and Medicine perform testing. contacted Cellmark to implicated by was not the results of Instead, testing. this round DNA Cellmark asked only profile male Moss was able to DNA perform testing vaginal Y-STR on the from an unknown male individ- obtain was DNA extract and underwear cut- swab Upon completion testing, ual. Cell- ting DNA extract that re- Cellmark had mark extractions from retained testing tained from the 2001 DNA and to un- vaginal M.E.H.’s swab and M.E.H.’s compare those extracts to Red Bird’s DNA cutting derwear in a secured area at the profile Eagle’s DNA profile. and Medicine lab. Leal, analyst, Barbara a forensic DNA dilution, performed quantitation, the DNA failed

[¶ 8.] Because amplification steps on the extracts.1 As Eagle implicate to Medicine and instead approach Cellmark used a team to DNA presence revealed the of DNA from an testing, steps the additional associated male, charges against unidentified the with the testing performed Y-STR were Eagle were In Medicine dismissed. by analysts. other The results of the Y- reopened the case was after law enforce- testing Eagle STR revealed that Medicine sexually ment learned M.E.H. had been could not be excluded day involved with Red Bird on the of the contributor to alleged rape. Using sys- non-sperm vaginal the DNA index the cell fraction of the CODIS, non-sperm tem known as was able to swab or the Smith cell fraction of the profile match the DNA of the cutting.2 May unidentified underwear Cell- trial, generally analysis performed. 1. At Moss described the DNA statistical is Leal testi- testing process. She testified that the first testing process fied that the Y-STR is similar extraction, step process in the is known as process to the Moss described. Leal ex- process present which the which DNA is plained that the two main differences associ- sample purified. is She indicated that the testing ated with Y-STR are that in Y-STR step quantitation, second is which establishes testing only quantitated, the male DNA is and present sample. the amount of DNA in the during copying portion testing, of Y-STR explained step amplifi- Moss cation, that the third is only the Y chromosomes are examined. Ad- process by which is the which millions regard ditionally, testing with to the DNA copies segments being of the of DNA tested process, step Leal testified that the dilution is amplifica- are made. Moss testified after performed any prior to dilute DNAwith water tion, amplified genet- product put into amplification. analyzer, analysis ic software is used to produce profile the DNA associated with the original report 2. Leal did not write the sample. explained pro- Moss that the same However, containing these results. Leal repeated samples cess is then with the known independently report, later reviewed the ana- suspect produce from the and victim to those results, lyzed the and reached her own con- profiles. obtaining profiles DNA After DNA regarding Eagle clusions whether Medicine samples, from the evidence and the known profiles Red Bird could be excluded as contributors to compared then are to determine if match, match, samples. there is a and if there is a perform Eagle, accepted Y-STR Medicine but she mark was also asked the ride bra, M.E.H.’s which Cellmark testing Eagle on because Medicine knew her sister. performed Leal received from Smith. S.M. claimed Eagle’s driving Medicine Y- amplification steps of the dilution and erratic, and that he forced her to drink sample. on the bra Addition- STR they driving. vodka while were Addition- analysis ally, completed Leal ally, mother, of taking instead S.M. to her containing her report results and wrote alleged Eagle S.M. Medicine drove to a The results of the conclusions. Y-STR field outside of town. Once' the vehicle sample testing of the bra established stopped away, run S.M. tried to S.M. as a Eagle Medicine could be excluded her, Eagle grabbed claimed Medicine As to each of sample. contributor to the dragged her back to his vehicle her analyses Leal’s statistical samples, these hair, engaged in sexual contact with although Eagle Medicine indicated her. S.M. asserted the attack ended when contributor, excluded as a could not be Eagle going she told Medicine she was paternally unrelated percent 99.97 happened, tell her mom about what would be excluded as contributors to males she became ill. physically S.M. claimed the samples. Eagle then drove her home. grand December On Eagle S.M. asserted Medicine four jury indicted Medicine on kill if anyone threatened to her she told counts second-degree rape, counts of three The grant- about the incident. trial court rape, one count of third-degree sexual ed the State’s motion and allowed the age contact with a child under and four to present jury this evidence to the kidnapping counts of as a result of the (Rule 404(b))’s pursuant to SDCL 19-12-5 allegedly incident that occurred between plan exception. September and M.E.H. in 29, 2011, September [¶ 12.] On Additionally, July State filed a notice of its intent to offer II charging State filed a Part Information testimony regarding witness the DNA evi- Eagle pur- Medicine as a habitual offender testimony dence. In addition to from 22-7-7, suant because Medicine to SDCL Smith, Moss, witnesses, and other Eagle prior felony had a conviction. Medi- testimony from sought State introduce Eagle arraigned charges cine on the was testing per- regarding Leal Y-STR 3, 2010, guilty. not August pleaded on Eagle formed in 2008 and 2011. Medicine trial, parties Prior to filed [¶ 11.] objected testimony, arguing it vio- to this 21, 2011, July various motions. On right con- lated his Sixth Amendment State filed a motion to introduce other acts against front the witnesses him because (Rule pursuant evidence to SDCL 19-12-5 analysts performed steps that some other 404(b)), allegedly based an incident of the DNA 2008 and 2011 were Eagle occurred between Medicine being called as witnesses. The trial not 29, thirteen-year-old January S.M. on objections rejected Eagle’s court Medicine alleged that on that date Medi- 2003. S.M. testimony. to this Eagle approxi- cine called her home at jury trial com- Medicine [¶ 13.] for her mately looking 4:00 a.m. sister. 11, menced on October 2011. On October S.M., According Eagle Medicine told 18, 2011, jury returned a verdict find- help her that her mother needed at work. ing Eagle guilty of one count of Medicine Eagle S.M. claimed Medicine said he was count of rape degree, in the second one give at the house next door and offered to third degree, sexual contact personally rape a ride. S.M. did not know her 16, AND age kidnapping. ANALYSIS DECISION a child under with 2011, filed an State On October 1. Whether the trial court Information for Habitual Amended Part II admitting abused its discretion Eagle that Medicine had alleging Offender involving evidence of the incident prior felony conviction. Medicine second pursu- as other acts evidence S.M. Eagle rearraigned then on the (Rule 404(b)). ant to 19-12-5 SDCL II Amended Part Information. “A trial court’s determi dismissed the Amended the State later nation to admit other acts evidence will not discovering II Information after Part be overruled absent an abuse discre felony actual- “prior” the second conviction ¶ Mattson, 71, 21, tion.” State v. 2005 S.D. ly principal after the offense.3 occurred (quoting N.W.2d State to trial on the proceeded The State then ¶ Anderson, 45, 93, 2000 S.D. 608 N.W.2d Information, II .to which original Part 670). “An abuse of discretion is ‘dis objection. Eagle Medicine made no The purpose cretion exercised to an end or January jury a verdict on returned justified by clearly against, reason and ” 2012, finding Eagle that Medicine was a Crow, evidence.’ v. Big State 2009 S.D. ¶ habitual offender. 87, 7, (quoting State Machmuller, February On 498). The admission of other to vacate II Eagle part filed a motion governed by acts evidence is SDCL 19-12- proceedings, arguing the trial court (Rule 404(b)), which provides: II pro- had no over the n crimes, wrongs, Evidence of other ceedings. claimed the prove acts is not admissible to the char- filing State’s of the Amended Part II In- person acter of a in order to show that original II formation dismissed the Part conformity he acted in therewith. It Thus, Information. that be- he asserted however, may, be admissible for other cause the failed to file a second motive, purposes, proof op- such as Amended Part II Information or refile the intent, portunity, preparation, plan, Information, II Part no knowledge, identity, or absence of mis- information even at the time of the existed take or accident. jury habitual trial. The trial offender admissibility [¶ 17.] “To determine the court denied the motion. Medicine evidence, other acts the court must ... years received sentences of 25 in the South (1) determine: whether the intended pur- Penitentiary rape Dakota State in the pose is relevant to some material issue in degree, years second 15 for sexual contact (2) case, probative whether the 16, age impris- with a child under and life substantially value of the evidence is out- kidnapping. onment for weighed by prejudicial its effect.” State v. appeals the trial admission of the court’s ¶ Huber, 56, 63, 283, 2010 S.D. 789 N.W.2d evidence, other acts of Leal’s admission Janklow, (quoting 301 v. 2005 S.D. testimony regarding the results of the Y- ¶25, 34, 697). 685, 693 This N.W.2d Court 2011, STR conducted in 2008 and previously has that SDCL 19- determined (Rule and its denial 404(b)) of his motion to vacate the inclusion, 12-5 a is rule of as proceedings. opposed to Wright, exclusion.4 State v. Specifically, Wright, The State’s dismissal of the Amended Part II in State v. this Court explicitly Information stated that (Rule 404(b)) “[t]he State acknowledged SDCL 19-12-5 original does not dismiss the Part II and exclusion, previously viewed as a rule of proceed intends to that Part II with 13, ¶50, opposed to inclusion. 1999 S.D. at the trial on such matter.”

893 ¶ 792, 50, 13, 593 N.W.2d 798. but instead “can be shown 1999. S.D. circumstantial “[Ojnce ly[,] circuit court finds other acts with a evidence that the defendant com relevant, tips ‘the balance em mitted a evidence series similar but ‘unconnected’ ” Huber, 50, in favor of admission.’ phatically Wright, ¶ 99, acts.” 1999 S.D. 593 ¶ 63, 59, at 302 Ewoldt, 2010 S.D. 789 N.W.2d (citing at People N.W.2d 801 7 ¶ Janklow, 25, 38, 2005 S.D. 693 (quoting 380, 646, Cal.Rptr.2d Cal.4th 27 867 P.2d 698). Further, damage (1994)). “[m]ere N.W.2d at 757, Essentially, 768-69 that “[a]ll position to a is not a basis for defendant’s required to show a plan common is that Essentially, that is “[a]ll Id. exclusion[.]” charged uncharged events ‘have ” 404(b) § ¶ under is that similar prohibited 19, points sufficient in common.’ Id. 593 ‘solely act evidence not be admitted (citing N.W.2d at 800 United States v. 50, prove Wright, character.’” 1999 S.D. Elizondo, 1308, (7th 920 F.2d 1320 Cir. ¶ 17, (quoting at 800 Huddle 1990)). N.W.2d However, the other evidence acts States, 681, 687, ston v. 485 U.S. United merely similarity “must demonstrate ‘not 99 L.Ed.2d 771 S.Ct. results, but such a concurrence of com (1988)). mon features' that the various acts are naturally explained to be as caused This has previous [¶ 18.] Court general plan they of which are the individ ly recognized that evidence of other acts ” ¶ 19, ual manifestations.’ Id. 593 N.W.2d plan exception can be admitted under the Ewoldt, (quoting Cal.Rptr.2d at 801 only charged “not where the and un 770). 867 P.2d at continu charged single acts are ing conception plot, or but also where the case, In this the trial sufficiently uncharged misconduct is simi court concluded that evidence of the inci they support lar to inference are involving dent S.M. was admissible under plan, design, of a common manifestations (Rule 404(b)) 19-12-5 SDCL to show Med ” Crow, Big or scheme.... S.D. scheme, Eagle’s plan, icine common ¶ 8, (citing 773 N.W.2d State v. operandi. modus the evi admitting (S.D. Champagne, dence, the trial court concluded that 1988)). the defendant denies do “[W]here involving incidents M.E.H. and S.M. were act, ing charged evidence of a common similar,” “strikingly and that the incident plan or scheme to achieve the act is direct involving prove S.M. was relevant to ly general relevant to refute this denial.” plan “had a common Ondricek, State v. 535 N.W.2d kidnap, rape, young scheme to and assault (S.D.1995) (citing United States Weid girl advantage victims he could take (7th Cir.1978)). man, 572 F.2d isolating decep after them use of his tion, threats, physical and intimidation.” plan The existence of a evidence, Furthermore, court proven need not be with direct the trial concluded (and (explaining ously Chamley 593 N.W.2d at 797-98 taken in State v. subse "[i]n past, ‘generally, we stressed that evidence quently Reyes, utilized in State v. of crimes or acts other than the ones with 251), which re charged which the is are inadmissi- defendant showing probative quired a that "the value of ble, ”). exception applies’ unless Howev- substantially outweighs proffered evidence er, Wright, in Court that SDCL this clarified danger prejudice” prior to the of unfair inclusion, (Rule 404(b)) a rule 19-12-5 of (and admission of other acts evidence es in stating preliminary showing that "no is neces- (Rule 404(b)) treated SDCL 19-12-5 sence sary may before such evidence be introduced ¶¶ 107, 9-10, exclusion). a rule of 1997 S.D. 13, proper purpose.” for a Id. 593 N.W.2d 607, 611-12. 568 N.W.2d Thus, rejects Wright previ- at 798. the view S.M., involving prove which oc- offense to common or plan that the incident scheme. (S.D.1995) 237, (discussing curred two and one-half approximately Downing, State v. 109 Ariz. 511 P.2d allegedly was kid- years after M.E.H. (1973) Morgan, and v. State 207 Kan. napped raped, and was not too remote so (1971), in 485 P.2d 1371 which the from trial. Fi- as to exclude its admission Supreme Courts Arizona and Kansas court determined that ad- nally, the trial rapes held that evidence of committed af- regarding mission of evidence incident rapes ter the the defendants were on trial unfairly prejudicial. not involving S.M. was for plan was admissible to show or scheme).5 Thus, subsequent acts can be appeal, Eagle Medicine ar- On [¶21.] plan exception admitted under involving gues that evidence of the incident (Rule 404(b)). SDCL 19-12-5 for two reasons. S.M. was inadmissible Second, Eagle argues Medicine First, Eagle argues that Medicine evidence involving evidence of the incident S.M. was S.M., involving alleg- of the incident which (Rule not admissible under SDCL 19-12-5 edly years one-half after two occurred 404(b))’s plan exception because the State Medicine commission of the crimes present did not evidence to that a establish M.E.H., against cannot to prove be used common plan actually or scheme existed at that Eagle plan Medicine had in 2000. alleged rape time M.E.H.’s in 2000. However, previously recog- this Court has However, above, proof as discussed direct nized that act evidence “[o]ther does of a plan necessary. existence is not admissible prior have to act to be be Instead, the existence of a common plan or (Rule 404(b)).” under 19-12-5 SDCL can provén circumstantially by scheme be ¶51, 20, State v. Toohey, establishing sufficiently that the acts are Further, State v. case, Eagle similar. does White, acknowledged this Court that other not argue involving the incidents M.E.H. jurisdictions have admitted evidence of Therefore, and S.M. were not similar.6 we occurring subsequent charged argument.7 acts to the need not further address this 5.In addition to the Arizona and Kansas cases sexual assault defendant was on trial for White, specifically recognized juris- other plan). was to show admissible common dictions have also allowed evidence of acts Additionally, has not direct- occurring charged subsequent to the conduct ly challenged length of time between the proof to be ádmitted as aof common scheme kidnapping rape of M.E.H. in 2000 and Catlin, plan. People or v. See 26 Cal.4th involving Regard- the incident less, S.M. in 2003. (2001) (evi- Cal.Rptr.2d 26 P.3d 357 previously this Court has stated that "we regarding dence defendant’s murder of his rigid have chosen not to set a time limitation admissible, wife prosecution fifth for determining when whether bad are acts too first-degree murders of his mother and fourth Ondricek, (con- wife, .remote.” 535 N.W.2d at 877 identity to show and to establish com- Balcom, cluding occurring years plan); People sexual abuse ten mon scheme or remote). prior Cal.Rptr.2d prosecution Cal.4th to the 867 P.2d 777 was not too (1994) (holding that evidence that defendant argument, 7. At oral Ea- counsel for Medicine uncharged rape robbery committed gle requested impose that this Court a re- charged weeks offenses after was admissible quirement jury/judge specific that the amake prove charged offenses were manifes- finding involving in cases SDCL 19-12-5 design plan); tations of common or State v. (Rule 404(b)), subsequent when acts are used (N.D.2005) (evi- Ramsey, 692 N.W.2d 498 prove plan the existence of a common subsequent dence of sexual contact was ad- scheme, plan the common or scheme plan missible under the or absence of mistake actually charged at the time of the 404(b)); existed exceptions or accident to Rule and did Cowley, conduct not arise later. 223 W.Va. S.E.2d (2008) (evidence authority burglary counsel for Medicine cites no and sexual as- burglary imposing requirement. sault that occurred six months after such a Overall, testing. we conclude that the 2008 and Y-STR Leal ex- plained perform every its discretion in that she did not trial court did not abuse of the step testing evidence of the incident involv- Y-STR conducted in admitting (Rule 19-12-5 2008 and as Cellmark utilized a team ing S.M. under SDCL 404(b)). However, approach testing. to DNA Leal reflects that the trial The record that testified she was familiar with the proper inquiries the before court made steps testing other of the and had per- Additionally, the evidence. the admitting formed them other occasions. Addition- gave limiting court instruction trial ally, explained analysts Leal the at misusing the evi- jury the from prevent Cellmark were trained to follow standard trial Specifically, dence. the court advised operating protocols conducting DNA of the incident in- jury the that evidence testing, they and that were to note trained volving “only could be used to show: S.M. any discrepancies. Leal testified that be- intent, motive, plan or common scheme. no discrepancies cause were noted tending it as to show may You consider analysts performed steps the other any respect guilt other the defendant’s testing, the Y-STR operating the standard of the offense with which the defendant is protocols were followed. Further, jury charged.” was instructed required that it was “not to consider this Leal also testified about the re- a matter you evidence and whether do is sults of the 2008 and 2011 testing, Y-STR your As a province.”8 within exclusive implicated Eagle. which Leal result, under the circumstances of this explained although she did not create case, the trial court did not err admit- report containing the re- involving ting evidence the incident S.M. testing, independently sults of the 2008 she report, analyzed results, reviewed the 2. Whether [¶24.] her own regard- and reached conclusions rights under Amend- Sixth ing whether Medicine or Red Bird ment’s Confrontation Clause were could be excluded as contributors to the al- violated when trial court general- Leal’s conclusions were samples. testify Barbara Leal to about lowed con- ly consistent with the conclusions and 2011 Y-STR report.9 Additionally, tained in the 2008 though steps even some of the test- she Leal testified about the conclusions by nontestify- ing performed were regarding reached the 2011 Y-STR test- ing analysts. her 2011 ing, which were consistent with trial, trial, report report. At the State called Leal to At neither Y- into testify regarding report the 2008 and 2011 nor the 2011 were introduced Instead, testing. through STR Leal testified about the dif- evidence Leal. the State steps during the which was a chart performed ferent she introduced Exhibit addition, admitting you prior dence and whether do so or not is a S.M.’s testi- alleged mony regarding rape, your province. the trial matter within exclusive jury: court instructed the slight Leal made one modifica- may only [evidence You consider report pro- tion. indicated that the The determine, involving incident S.M.] mo- non-sperm cell fraction tive, file obtained from plan and common scheme. Before cutting of the underwear was a mixture of determining whether to consider this evi- profile dence, least two males. Leal reviewed the you prepon- must determine if a first appeared to that the mixture determined derance of the evidence established that originating with from two Eagle] be more consistent [Medicine committed the other acts. required You are not to consider this evi- males. 896 (2004). summary of L.Ed.2d As we recognized Leal’s conclusions 177

containing State v. Johnson: for each calculations of the statistical precisely did not articulate samples in 2008 and 2011.10 On Crawford tested ‘testimonial,’ what is considered but it appeal, Eagle argues his Sixth provided some At a mini- guidance. to confront the wit- right Amendment mum, announced, the Court ‘testimonial’ was violated the against nesses him when includes made during police statements testify Leal to trial court allowed about the interrogations prior testimony at a and 2011 Y-STR test- results of the 2008 preliminary hearing, grand before a (and ing containing Exhibit 19 admitted jury, or at In describing a former trial. and statistical calcula- Leal’s conclusions statements, testimonial the Court also tions) steps testimony typically because some noted that is ‘[a] sol- emn declaration or affirmation made for nontestifying analysts. performed by were purpose establishing or proving Further, some fact.’ the Court offered a Alleged violations of non-exclusive list of ‘formulations’ of the rights constitutional are reviewed (1) term parte ‘testimonial’: ‘ex in-court Court under the de novo standard of re testimony equivalent- or its functional ¶ Johnson, 67, 10, view. State v. 2009 S.D. is, affidavits, that material as such custo- 360, (citing 365 State v. Selal examinations, prior dial testimony that ¶ la, 18, 807). 802, 2008 744 S.D. the defendant was unable cross-exam- “The Sixth Amendment to the United (2) ...;’ ‘extrajudicial ine statements Constitution, applicable States made to the contained in formalized testimonial ma- Amendment, terials, affidavits, States via the Fourteenth such depositions, confessions;’ (3) prior testimony, or provides prosecutions, that ‘in all criminal statements made under circumstances enjoy right accused shall ... to be objective that would lead an witness rea- against confronted with witnesses ” sonably to believe statement Massachusetts, him.’ Melendez-Diaz v. would be available use at a later 305, 309, 129 2527, 2531, 557 U.S. S.Ct. trial. (internal (2009) L.Ed.2d 314 citation omit 771 N.W.2d at 368 ted). In v. Washington, Crawford (internal omitted). citations United States Court Supreme held that Crawford, Following United under the Sixth Amendment’s Confronta Supreme States issued two Court deci Clause, tion statements of “[testimonial Eagle’s sions that are relevant to Medicine witnesses absent from trial [are admissi — Mexico, appeal: v. New Bullcoming only declarant ble] where the is unavail U.S. -, 131 S.Ct. 180 L.Ed.2d 610 able, only where the defendant has (2011) and Melendez-Diaz v. Massachu had a prior opportunity to cross-examine.” setts, 557 U.S. S.Ct. (2009).11 36, 59, 1354, 1369,

541 U.S. 124 S.Ct. 158 L.Ed.2d 314 Melendez-Diaz was Thus, Eagle’s specifically alleged assertions that considered violation of reports rights 2008 and defendant's Clause were introduced at Confrontation testimony based on the through introduction re- supported by trial Leal are not — -, garding testing. DNA U.S. record. However, given S.Ct. 2221. the fractured na- - Illinois, -, Williams U.S. opinion ture of the Williams and that no (2012) S.Ct. (plurality L.Ed.2d agreed upon by majority, rationale was opinion), Supreme United States provide Williams does not this Court with a Court’s most decision recent relevant to Medi- sound basis for its decision in this case. See Am., cine Corp. Sixth Amendment claim. Corp. Dynamics CTS 481 U.S. Williams, (1987) Supreme the United States 107 S.Ct. 95 L.Ed.2d 67 Court in by the 2009. 557 who decided Court U.S. was familiar the with lab’s testing Melendez-Diaz, In 129 S.Ct. 2527. procedures, neither but had participated in charged defendant with the distribut testing nor observed the of the defendant’s ing and at trafficking cocaine. Id. blood sample. appeal, On Id. the United trial, at prosecu S.Ct. 2530. At the Supreme States Court held that the report tion submitted three notarized “certificates was testimonial and that admission of the analysis” the containing of results of the report through analyst who did not sign analysis forensic performed on the sub the report perform or or observe the test- defendant, seized stances from the which ing violated rights the defendant’s under established the substances were cocaine. the at-, Confrontation Clause. Id. Id. at at 2531. The 129 S.Ct. defen S.Ct. at 2710. The Court concluded that objected dant the admission the cer the “surrogate testimony” did not satisfy tificates, arguing that admission of the constitutional requirements and that the testimony certificates from without the an right defendant had the to confront the alysts who tested the seized substances vi analyst report. who certified the Id. rights olated his the under Confrontation [¶ support 30.] his claims that the Id. at 129 S.Ct. at Clause. 2531. admission of testimony Leal’s regarding The trial court the overruled defendant’s the 2008 and 2011 Y-STR violated objection, and admitted the certificates. his rights, Confrontation Clause appeal, Supreme Id. On the States United Eagle argues equivalent this case is Court held the certificates were testimoni Bullcoming. asserts Leal statements, analysts al and the were “wit essentially “surrogate offered testimony” for purposes nesses” of the Sixth Amend because she perform did not each step of ment. Id. at 129 S.Ct. at 2532. As a the Y-STR testing conducted in 2008 and result, the Court concluded that the trial 2011, yet she still testified about the re- court’s admission of the certificates with However, sults of the testing. the facts of requiring analysts out the to be called as this case are distinguishable from the facts rights witnesses violated the defendant’s of Bullcoming key in three respects. under the Confrontation Clause. Id. at First, Bullcoming, unlike in 329, 129 where the S.Ct. at 2542. nontestifying analyst’s 'report was admit- Bullcoming was decided the evidence, ted into in this case neither the — -, in Court 2011. U.S. S.Ct. report nor 2011 report the were even In Bullcoming, the defendant was Instead, admitted into only evidence. the arrested and with charged driving while through exhibits Leal admitted were her (DWI). at-, intoxicated Id. 131 S.Ct. curriculum vitae and chart she created trial, prosecution at 2709. At intro- summary containing a of her independent laboratory duced a forensic report which conclusions and statistical calculations for certified that the defendant’s blood alcohol sample each in tested 2008 and 2011.12 concentration ag- was above limit for Second, analyst unlike the in gravated Bullcoming, analyst DWI. Id. signed did not who did not report testify. participate in observe the Id. Instead, prosecution analyst testing, called an in this Leal in participated ease Therefore, (indicating plurality opinions, report which do even if the 2011 been had represent not majority Leal, of a views through admitted its admission would Court, binding are precedent). likely appropriate have been under Bullcom- ing. Furthermore, signed Leal created report regarding testing. Y-STR Further, 1,129 at 2532 n. 1. Y- n. S.Ct. and 2011 the 2008 steps of both various holding that its “does Third, indicated analyst unlike the the Court testing. STR everyone test- who laid hands about the not mean that Bullcoming, who testified nontestifying ana- Id. reached must be called.”13 ing results the evidence testify about Leal did not lyst, this case Additionally, Sotoma- Justice specif- or the analyst’s conclusions another Bullcoming provides concurrence yor’s report. ic contents testify the issue of whether guidance on own Instead, only testified about her Leal in the of involvement ing analyst’s level Y- and 2011 from the 2008 conclusions impacts a court’s evalua testing forensic calculations testing and the statistical STR his or her claim that tion of a defendant’s Therefore, is this case performed. she In was violated. right to confrontation Bullcoming. distinguishable from factually Sotomayor suggested Bullcoming, Justice reasons, this is also same case For these by was affected decision the Court’s distinguishable from Melendez-Diaz. testifying analyst participated whether Me- Although Bullcoming and — at -, testing. in the forensic U.S. factually distinguishable are lendez-Diaz J., (Sotomayor, concur at 2722 131 S.Ct. case, Bullcoming and Me- from this both that Sotomayor recognized ring). Justice guidance on issues provide lendez-Diaz in not a case which Bullcoming “is Eagle’s claim that pertinent to Medicine reviewer, supervisor, is a person testifying rights were vio- Confrontation Clause his personal, with a albeit or someone else testify to permitted lated when Leal was limited, test at to the scientific connection testing about the 2008 and 2011 Y-STR Sotomayor on to went issue.” Id. Justice step each perform did not though even she instead, testifying ana that point out Therefore, testing. both Bullcom- of the in Bullcoming in had no involvement lyst remain relevant ing and Melendez-Diaz testing produc or the forensic conducting Eagle’s of Medicine this Court’s resolution trial. Id. report introduced ing the Sixth Amendment claim. guidance in [¶ 34.] With Specifically, Melendez-Diaz Eagle’s mind, we conclude Medicine must be provides guidance as to who some rights were not vio Clause Confrontation satisfy a a witness in order to called as introduction of testi lated the State’s the Confrontation rights defendant’s under 2008 and mony regarding from Leal testing performed in cases where Clause in participated Leal testing. 2011 Y-STR In Melendez- by multiple individuals. the 2008 and 2011 steps of both various Diaz, holding after the certificates original report and even wrote the testing and that the defendant were “testimonial” of the 2011 Y-STR regarding the results at trial with was entitled to be confronted Also, re independently Leal testing, certificates, analysts who created viewed, analyzed, compared the data stating: holding, clarified its the Court testing. during the 2008 Y-STR obtained case, hold, and it is not the “we do not independent to her own She then came testimony may be relevant anyone whose Eagle whether Medicine conclusions about custody, au chain of establishing to the as a contributor could be excluded accuracy of the thenticity sample, of the addition, the 2008 and 2011 In samples. device, appear person must intro- testing reports were Y-STR case.” 557 U.S. part prosecution’s multiple individuals testify where in situations provided this clarification 13. The Court testing process. participated in the forensic re- response the dissent raised to concerns Melendez-Diaz, 305, 129 S.Ct. 2527. 557 U.S. analyst required garding would be which Instead, through only at trial Leal. tion without refiling duced Part II created, which Information or filing the chart Leal contained a second Amended Information, Part II summary no II of her conclusions statistical information even sample, upon existed which for each was admitted the trial court calculations Thus, could Further, proceed. because no only evidence. Leal testified into existed, information her own and statistical claims conclusions about the trial subject-matter court did not have Finally, calculations. had jurisdiction habitual over his jury adequate opportunity cross-examine offender trial. at trial her regarding Leal conclusions and Therefore, statistical under calculations.14 contrast, argues case, we the circumstances of this conclude that subject-matter is not an

that Medicine Sixth Amendment issue court already because the trial ob- to confrontation not violated right personal subject-matter tained juris- trial court’s admission testi- Leal’s regard diction with to the principal of- mony 2011 regarding the 2008 and Y-STR fense. Additionally, although the State analysts testing, though per- even who recognizes filing that the of an amended steps some of the 2008 and 2011 formed complaint supersedes original an complaint testify at testing did not trial. Y-STR matters, in civil argues the State that the same applicable rule is not to habitual the trial court Whether offender proceedings because a part II denying in erred information is the same as a not criminal part pro- motion the II to vacate Further, or civil complaint. the State ceedings. claims that of filing its the dismissal of the appeal, Eagle 36.] On ar- [¶ Amended Part II Information should actu- filing that the of the gues ally State’s Amended be treated amendment as an or modifi- II original Information the Part dismissed cation of Part II the Amended Information result, II a Part Information. As Medi- to original revert back to the Part II Infor- Finally, cine asserts that when the State mation. argues the State Medi- the Part II cine Eagle challenge part dismissed Amended Informa- waived his to the situations, State, Notably, ing); juris Pendergrass in other similar v. 913 N.E.2d 703 (Ind.2009) (concluding have that a that dictions concluded defendant’s defendant’s Sixth rights rights Amendment were not Amendment not violated Sixth violated were when lab results, though analysts partici supervisor testing DNA even some of the who testified to but pated testing process analyst performed testify the forensic did not who the tests did not trial); (R.I.2012) testify Boyd, Lopez, at trial. See States v. 686 at State v. 45 A.3d 1 United (S.D.N.Y.2010), F.Supp.2d aff'd, (concluding 382 401 Fed. that defendant’s confrontation (2d Cir.2010) (holding rights by Appx. supervisor’s were defen not violated lab results, right testimony regarding testing dant’s Sixth to confronta even Amendment DNA expert though perform was DNA did supervisor tion not violated when was lab the permitted testify pre preliminary stages to the the DNA about results of and the liminary steps testing performed analysts steps performed of the those were not trial); Manion, analysts, testify which of the called to at State v. other formed basis 610, (2013) analysis expert’s Wash.App. (holding the DNA and conclu 295 P.3d sion); State, 45, testimony expert regarding 291 Ga. Disharoon v. of DNA re- — denied, (2012), U.S. -, testing performed by nontestify- S.E.2d 465 cert. sults of DNA 767, (2012) (con ing analyst 133 S.Ct. 184 L.Ed.2d 507 did not violate the defendant’s cluding rights that Confrontation Clause was not Confrontation Clause because the DNA expert independent expert- testify when allowed to conducted review of violated testing, though opinion even her own about results of DNA results and formed about evidence). expert perform every step did not of the test- the DNA sentence, object to courts over whether split he did not are II because proceedings information, II Information failure to file an or of the Part defects the use jury to filing, jurisdiction, found him be are until after its issues or instead, simply offender. pre habitual whether such flaws vent, bar, preclude, deprive or the trial address the 38.] We first authority impose court to an enhanced argument State’s that Medicine v. sent ence.15 See Prou United challenge pro waived his (1st Cir.1999). States, 199 F.3d juris ceedings. “Whether this Court has Dakota, beyond In South [¶40.] legal issue is reviewed de diction is which subject-matter concepts personal ¶ Anders, v. 2009 S.D. novo.” State jurisdiction, “ju- we defined the term have Owen, 547, 549 v. (citing 763 N.W.2d State broadly ¶ risdiction” more to include “the 362). 2007 S.D. 729 N.W.2d right, authority to hear legal power, or any issues can be raised “Jurisdictional causes, determine cause or considered jurisdiction is time and determination of general either in with reference or to the Id. at 549- appropriate.” 763 N.W.2d matter, power ... in- particular [the] (citing v. rel. Muilen Sazama State ex law, quire apply into facts and 17, ¶ 9, berg, 2007 S.D. 729 N.W.2d right adjudicate ... concerning the 340). Further, subject-matter jurisdiction subject-matter given case[J” consent, acquired cannot be agreement, Ewert, Byrne rel. ex State, waiver, estoppel. Honomichl (citation omitted). (1916) (S.D.1983). N.W. We 797, 799 have also declared it to mean “whether Consideration of whether power upon inquiry there was to enter the jurisdiction generally exists a de entails by and not whether the determination the possesses of whether termination the court question court of of law or fact involved personal jurisdiction over the defendant Tusha, is correct.” Janssen v. 68 S.D. subject-matter the over (1942). 643, 639, 684, 685 Apply- subject before v. matter it. See Calhoun definitions, ing those we conclude that the 266, 266, 269 Bryant, 28 S.D. 133 N.W. question statutory of whether there was (1911). The is trial correct that the authority for the impose trial court to the subject-matter jurisdiction court did have (given disputed enhanced the sentence le- charges over the criminal the State of the gal original/Amended status Part II However, brought against the defendant. Information) jurisdictional question. is a “ observed, ‘[¡jurisdiction’ as one court is a result, As a Court can review Medi- many, many, meanings.” too word Eagle’s challenge cine to the II pro- Vanness, 661, United F.3d 663 States ceedings regardless of when he made this (D.C.Cir.1996). reviewing n. 2 similar challenge. involving statutory requir cases schemes Next, ing filing in order for SDCL 22-7-11 re information subject quires defendant to be to an enhanced that: 797, State, by 15. We note none cases cited Honomichl Judge (S.D.1983) (Wollman, J., Justice Zinter or involve a situa- dissenting). Salter See in- had 71, ¶¶ tion which the II information Justice Zinter's dissent 75 n. fra We been dismissed. also note that Justice emphasize controlling, We that neither as (Mee I), heavily Zinter relies Mee on State v. majori- for the Justice Wollman did not write (1940), rev’d on N.W. 875 Honomichl, ty by and Mee I was reversed (1941) rehearing, 67 S.D. 297 N.W. 40 MeeII. (Mee II) writing and Justice Wollman’s Any allegation that a defendant though is an as it had been formally dismissed habitual criminal shall sep- be as a by court”); Devine, order of State v. filed of, arate the time or (re- N.M. 164 P.3d 1009 (Ct.App.2007) information before, arraignment. iterating that an amended criminal infor- motion, may, upon court permit sep- mation has the effect of dismissing prior arate information to filed be after the information); criminal Navone, State v. arraignment, no thirty but less than (1934) 180 Wash. 39 P.2d days before the commencement of trial (indicating that the original information entry plea of a of guilty or nolo was superseded by filing of the amend- contendré. The information shall state information). ed times, places, specific crimes Additionally, the Supreme Court alleged prior to be convictions and shall of New Mexico applied has this same rule signed by be the prosecutor. An official in the context of informations filed for court record under seal or a criminal purposes of habitual offender proceedings. history together fingerprints with certi- Chacon, See State v. 103 N.M. fied public having official custody (1985). P.2d 152 Specifically, in State v. thereof is sufficient to be admitted in Chacon, the New Supreme Mexico Court evidence, foundation, without further recognized that ‘amended’ “[a]n informa prove allegation that the defendant tion vitiates the information as n is an habitual criminal. fully though it formally had been dis added.) (Emphasis This Court has not missed order of the court. It consti previously addressed the issue whether filing tutes the of a new instrument which filing of an Amended Part II Informa supersedes predecessor.” its 706 P.2d at tion in a habitual offender proceeding (quoting Benally, State v. 99 N.M. serves to dismiss the original Part II In 1142, 1144 658 P.2d (Ct.App.1983)). formation. considering When how fil case, For purposes [¶43.] of this ing of an amended information affects the State has not offered a valid reason for original information, several courts have creating special a part rule for a II infor- filing held that the of an amended informa mation for habitual regard offender with to essentially tion acts as a dismissal of the the origi- effect amendment has on the original information. See Armstrong nal filing. We conclude that when the States, (9th United 16 F.2d Cir. State filed the Amended Part II Informa- 1926) (indicating that the amendment of an tion, the original Part II Information was information original causes the information Thus, effectively following dismissed. abandoned, the to be and that filing the of a State’s dismissal of the Amended Part II new “destroyed information all functions of Information, no II part even the old information as information fully though it upon had been existed which the trial court motion”); dismissed formal could State, (Fla. proceed Wilcox v. with Medicine’s So.2d habitual of- Dist.Ct.App.1971) (stating jury fender trial.16 filing that the of The fact that the State an amended information language “has the effect of included in its dismissal of the vitiating, original the information as fully Amended Part II Information indicating error, In plain his discussion of part waiver and at proceedings the time of the II due to Justice part Zinter treats the lack of a II State's the dismissal of the Amended Part II part information as a “defective” part II informa- Information. As no II information exist- ed, disagree tion. We with this treatment. it cannot be considered "defective” or case, part no II information even existed otherwise. prove plan to common Part admissible original the dismissing it not

that was scheme, the existence of a common pro- and that it intended II Information proven circumstan- Part II Information or scheme can be original plan upon the ceed difference, acts are point establishing that the tially by because makes no Therefore, al- II Information had we affirm original sufficiently Part similar. the effectively Next, dismissed. See Wil- ready Eagle’s been on this issue. the cox, (holding at 694 248 So.2d right to confrontation Amendment Sixth information of the amended filing State’s court’s admis- by the trial was not violated information, original testimony regarding the dismissed of Leal’s sion subsequent withdrawal State’s testing despite and 2011 Y-STR without left the State information amended performed some analysts fact that defendant, and the charge against testify at trial. steps of the did “re- could not be information original of the 2008 performed steps various Leal vived”). Furthermore, reject we reviewed, testing, independently and 2011 filing that its of the dis- argument State’s obtained analyzed, compared the data Part II Informa- the Amended missal of her own conclu- testing, from the reached treated as an amendment tion should be testing, of the regarding sions the results II Information.17 the Amended Part calculations based and conducted statistical Further, fil- neither the 2008 requires the on her results. SDCL 22-7-11 [¶44.] introduced report Because the nor the 2011 were ing part report II information. trial, only II In- through Amended Part as Leal testified filing of the Leal State’s Thus, of the Medi- subsequent dismissal own conclusions. formation about her Information left opportunity Amended Part II to cross-examine Eagle’s cine file, II information on part State without a purposes Leal was sufficient not have the trial court did we af- Consequently, Amendment. Sixth proceedings II continue with the Finally, issue. because firm on this There- enhanced sentence.18 impose an In- the Amended Part II filing of State’s fore, denying Medi- the trial court erred effectively formation dismissed part II cine motion to vacate the Information, II no II information Part result, on this issue we proceedings. As the trial court could upon existed which resentencing. reverse and remand for following the State’s dismissal proceed As a the Amended Part Information. CONCLUSION result, jurisdic- trial court did not have case, the trial court did In this proceed- the habitual offender tion over admitting evi- not abuse its discretion Therefore, we reverse ings. on this issue involving the incident S.M. as dence of resentencing. and remand for 19- pursuant evidence to SDCL other acts SEVERSON, Justice, (Rule 404(b)). concurs. are Subsequent [¶ 46.]

12-5 acts State, that this Court held filing the Amended 18. In Honomichl 17. The of the dismissal of left to file an information the State’s failure II served to terminate Part Information jurisdiction subject-matter the court without part proceedings under the Amended Part 333 and sentence defendant. to convict (provid- II Information. See SDCL 23A-44-2 Although Honomichl was N.W.2d at 798-99. attorney may a ing prosecuting file "[a] that part II in context of a infor- not decided indictment, information, or dismissal of an offender, princi- habitual the same mation for complaint prosecution and shall there- Further, despite Jus- ple applies in this case. terminate”). upon analysis, we note that neither tice Zinter's overruling party for advocated Honomichl.

903 Justice, KONENKAMP, sentencing procedure ment for federal [¶ 47.] drug SALTER, Judge, impact only Court concur in offenders a trial Circuit court’s sentencing authority jurisdiction. in part part. result in its and concur —not prosecutors Federal may seek enhanced ZINTER, Justice, concurs in [¶ 48.] minimum mandatory sentences for viola- in part part. and dissents tions of the Controlled Substances Act for SALTER, Court Judge, Circuit repeat drug filing offenders an “in- after Justice, WILBUR, sitting disqualified. stating writing formation ... in the previ- upon.” ous convictions to be relied 21 KONENKAMP, (concurring in Justice 851(a)(1); § U.S.C. see also U.S.C. in concurring part). in result 841(b)(viii) § (authorizing enhanced sen- I concur on Issues and 2. I [¶50.] tences). However, in instances where join in Judge Salter’s concurrence result compliance with section 851’s information- on Issue 3. filing requirements suboptimal, has been the overwhelming majority of federal (concur- SALTER, Judge Circuit Court appeals courts of have refused to treat in ring concurring in result in noncompliance jurisdictional infirmity. part). As Appeals the First Court of Circuit ex- join opinion I Chief Justice’s plained: agree I Issues 1 and prosecution Whether or not the files a presented requires error Issue 3 851(a)(1) information, timely section Court to vacate Medicine sen- federal plainly possesses district court resentencing. tences and remand for subject-matter jurisdiction drug over agree I do not the trial § (conferring cases. See 18 U.S.C. imposition court’s the sentences here jurisdiction “of all offenses jurisdiction, I implicates and write sep- its States”). against the laws the United arately to views. respectfully my add jurisdiction necessarily This includes the the indictment this case 52.] Since imposition penalties. of criminal Once alleged cognizable offenses under South subject-matter jurisdiction has properly law, Dakota the trial court obtained the attached, may their courts exceed au- subject jurisdiction limit of its matter thority or otherwise err without loss of when See the case commenced. State v. jurisdiction.... Thus, only question (S.D.1990) Escalante, N.W.2d legitimately prose- arises from the (“A trial court in a criminal case does not with comply cution’s section [failure acquire subject jurisdiction matter unless 851(a)(1) authority concerns court’s ] state a formal files and sufficient indict impose an enhanced sentence. This information.”) (citing ment or re Brock question subject-mat- simply not mueller, (S.D.1985); 374 N.W.2d 135 Ho jurisdiction.... ter (S.D. State, nomichl v. (1st States, Prou v. United F.3d 1983)). simply layer There is no additional Cir.1999) (citations omitted); see also tier of that exists a crimi Pritchett, United States 496 F.3d nal case. I trial would hold that the court (6th Cir.2007) (reviewing cases and 543-46 statutory exceeded of its sen limits noting only the Eleventh Circuit Court of authority yield but without tencing did so Appeals with sec- noncompliance has held ing jurisdiction. its error); jurisdictional tion implicates 851 Nearly all of federal v. F.3d Mooring, [¶ 53.] courts United States 287 Cir.2002) (8th appeals confronting (rejecting of a similar issue claim that have 727-28 held that in in the section information irregularity errors the recidivist enhance- court’s erroneous determination of jurisdictional er- the trial in a

procedure resulted convictions, ror). previous of the number prejudiced was not because defendant Here, analysis applies. the same was, event, num- any a sufficient there jurisdiction over this trial court had The his en- support convictions to prior ber and, following guilty ver- case criminal ¶ 132, 31, 691 hanced sentence. 2004 S.D. dicts, to sentenc- obligated proceed to was Further, 310-11 n. 12. N.W.2d (sentences ing. SDCL 23A-27-1 See Anderson, rejected a v. this Court State unreasonable imposed without “shall” be repeated post-conviction efforts prisoner’s below, it un- the fact delay). explained As sentence, noting challenge to his enhanced proceeding criminal dertook a habitual crimi- “failure to raise the issue on [direct] Part II habitual his without an effective ul- any appeal error which barred further appeal nal information constituted issue, in excess of its timately only corpus” to a sentence and left habeas led (cid:127) not, however, error did authority. “possible The remedies as post-conviction other jurisdiction. trial court of deprive 22, 24, ... relief.” 2005 avenues for S.D. 675, 682. This Court has also 693 N.W.2d sentencing authority The issue— a trial court’s decision to sentence affirmed than more versus —involves despite a defendant as a habitual criminal errors, as mere semantics. Jurisdictional failure to refile a Part the State’s “new” states, are not opinion the Chief Justice’s information when the de- habitual criminal States v. Cot subject to waiver. United on an additional arraigned fendant was ton, 625, 122 S.Ct. 535 U.S. Graycek, principal felony charge. State v. (2002). They are also not L.Ed.2d 860 (S.D.1985). Gray- 368 N.W.2d for harmless subject appellate to review cek, guilty to the pleaded the defendant ness, subject they may not be the felony charge as well as reduced pro additional procedural post-conviction default in States, drug charges pursuant misdemeanor ceedings. McCoy v. United (11th Cir.2001). objected Non- plea agreement. 1248-49 The defendant F.3d treated different jurisdietional errors are failure to file another habitu- to the state’s forfeited, ly. They can be waived sentencing, al information before criminal (S.D. Ganrude, 608, 612 declined the trial court’s offer to allow but 1993), reviewed for harm they can be guilty him his and “be pleas to withdraw Garritsen, 421 lessness. State v. N.W.2d prior he reinstated to position ” (S.D.1988). 499, 501 pleas.... at 817-18. entering his Id. strongly suggest cases that failure These Though question is one of comply with the habitual criminal stat- Dakota, in South impression first may utes be reviewed for harmlessness point decidedly, decisions previous Court’s may that it be waived19 or the also treating irregularities if implicitly, toward subject procedural default —none of non- procedures in the habitual offender instance, jurisdictional with a in which is consistent jurisdictional For errors. Knoche, Pasek, despite held that error.20 See State N.W.2d State v. this Court squarely pre- Graycek, question has not been example, in this Court noted clear the 19. For See, acquiesced” e.g., to the the defendant "in effect and addressed on the merits. sented principal felony charge. 818; Abelt, additional Graycek, 368 N.W.2d at In re (1966). N.W.2d 435 Nor does S.D. rely upon opinion these the Chief Justice’s Though this Court has time to time from controlling authority conclu- for its cases as "jurisdiction” in the con- made reference to jurisdictional. sion that the error here enhancement, habitual offender it is text of a

905 (S.D.1994); review, Camp, 840 State v. Moves trial “[t]he court must be given an (S.D.1985). 569 N.W.2d opportunity to any correct claimed error (cita- before we will review it on appeal”) divergent The views [¶ 57.] on this sub omitted); Hotter, tion see also State v. ject may well be attributable to the impre (S.D.1983) N.W.2d “jurisdiction” cision with which the term (holding defen- historically has been used. in dant’s sentencing argument was not prop- contemporary concept subject its matter erly before the Court because he “did not jurisdiction, Supreme Court has held any at prior time to this appeal raise a “ simply means ‘the claim that his improper sentence was statutory courts’ or constitutional power to illegal”).21 ” Cotton, adjudicate the case.’ at U.S. [¶ Under review, 60.] harmless error S.Ct. at (quoting Steel Co. v. 630 122 error may is harmless disregarded be Env’t, 83, 89, Citizens Better 523 U.S. for where it does not affect a (1998)). defendant’s sub- 118 S.Ct. 140 L.Ed.2d 210 stantial rights. The facts in quickly Cotton SDCL 23A-44-14. illustrate the The sentencing authority distinction between prove State must the error was not preju- power and the ¶ sentence. Nelson, dicial. 124, 8, State v. Here, 587 N.W.2d the State Cotton, In a federal indictment cannot sustain burden. this alleging drug conspiracy offenses did not include threshold quantities necessary to inquiry The regard be- trigger enhanced sentences. The trial gins judicial not with a assessment of the court’s impose decision to an enhanced purpose behind the habitual offender stat- was, therefore, erroneous, sentence but it utes or whether Eagle had notice implicate subject did not jurisdic matter the State was seeking an enhanced tion and could be reviewed for harmless sentence upon based Part II ness under plain error doctrine. Id. at Rather, information. analysis begins 631, 122 S.Ct. at 1785. with the text of the principal statute at Applying principles, these issue here which allows for an enhanced trial procedural court’s error here should only separate sentence after a information also be reviewed for my harmlessness. In has been filed. SDCL 22-7-11. See view, preserved has his addition, application faithful of this Court’s objection to his sentence objecting to it requires decisions that the habitual offend- before it was I imposed, and would review strictly er statutes be construed because of error, the error for harmless rather than “highly penal their nature.” See State v. the more demanding plain strictures of the (S.D.1988) (habitual Loop, N.W.2d 420 error doctrine. See United States v. offender strictly statutes should be con- Smith, (8th Cir.2009) 573 F.3d nature”); (errors given “highly penal strued their preserved which are are reviewed 818; error); Graycek, 368 Card, State v. harmless State (in Grooms, (S.D.1983); S.D. N.W.2d 318 (S.D.1983). order to preserve appellate Layton, issue for 337 N.W.2d 809 Here, it, rejected record establishes the ultimately entering trial court ment and writ- opportunity had the to address Medicine Ea- findings ten of fact and conclusions of law. gle’s objection habitual offender sen- circumstances, Under the the trial record is tencing enhancement. After Medicine sufficiently developed appellate to enable re- objection filed an sentencing in advance of his view. hearing, argu- the trial court considered the itself, dismissed, then, leaving no ef- pro- 22-7-11 text of SDCL The 62.] [¶ information. Un- fective habitual offender part: vides relevant circumstances, imposition the of der these is an that a defendant allegation Any mandatory pres- life sentence enhanced a sepa- be filed as criminal shall habitual Though a prejudice. a clear case of ents of, information the time or be- at rate to life was authorized at the up sentence of However, the court fore, arraignment. the of- Eagle committed time Medicine motion, separate the permit may, upon offender kidnapping, of the habitual arraign- after the fense to be filed information mandatory life required a ment, thirty days before enhancement no less than but entry pun- of a the authorized by elevating of trial the commencement sentence The a felony contendré. a to guilty or nolo ishment from that of Class plea of times, places, Indeed, the state the trial court felony.23 information shall B Class prior alleged crimes be specific and during sentencing hearing the stated signed by the and shall be convictions mandatory is a life sentence” “[t]his prosecutor. exercising any discretion that it “was not Sentencing in terms of that sentence.” princi- four includes The statute Therefore, at 31. Hearing Transcript (1) filing of an infor- requirements: pal harmless, and trial court’s error was not (3) (2) by prosecutor signed mation resentenc- case must be remanded for change trial or thirty days before the least charge. ing kidnapping on the (4) times, stating places plea and re- alleged. crimes These specific question The of whether resen- predi- satisfied as a quirements must be contact tencing required for the sexual authority to sentencing judge’s cate to a presents convictions a closer rape If these sentence.22 impose an enhanced my Both sentences question, view. satisfied, imposi- are not requirements sentencing the unenhanced were within sentence could well tion of an enhanced argument could be ranges, and a credible error which is not sentencing lead to were unaffected made that the sentences harmless. Part II Information. See by missing (trial Hearing Transcript at 29 Sentencing hap- what aptly That describes the maximum stating court “those are Part II in this case. The pened charges the unenhanced penalties under replaced by supersed- Information was Information.”). Part pursuant which to the Part II Information ing, amended intelligent rights necessary tary waiver of his under requirements are Though these authority impose an en- to a trial court's SDCL 22-7-11. sentence, regarded they should not be hanced "jurisdictional” requirements. de Legislature facto amended the stat- ju- components subject matter Unlike true risdiction, felony penalties prescribing classes and ute statutory requirements of category felony, punisha- adding a of Class C could be waived or reviewed SDCL 22-7-11 22-6-1(3). by up prison. ble to life in SDCL Indeed, ap- distinction for harmlessness. prison maximum sentence for a Class The figure Eighth pears prominently in the Cir- years. felony SDCL 22- fifty was reduced to Mooring, Appeals’ holding in cuit Court of statute, 6-1(4). kidnapping 22- SDCL The had waived 21 U.S.C. the defendant 19-1, amended in but at the was also requirement § at the time 851’s information offense, kidnapping time of Medicine change plea hearing by stipulating of his felony in the absence was Class under that he had received sufficient notice injury[.]” physical "permanent victim’s case, In this section 851. 287 F.3d at 727-28. Frazier, contrast, there is no indication 744, 749. knowing, Eagle actually volun- undertook Judicata, Estoppel court also that Herman on the trial ordered & Res vol. 66). to the sentences be served concurrent par. We have adhered to similar observing, “I see sentence after don’t life See, day. to this e.g., supra definitions by any purpose being served consecutive ¶ 40; opinion Wipf Chief Justice’s v. Hut regard.” that Id. Given sentences Brethren, Inc., terville Hutterian 2013 court will on fact that the trial resentence ¶ 21, (altera S.D. 331 charge in- kidnapping and the fact the original) tion in (quoting Restatement in- potentially could be dividual sentences (Second) (1982)) (defin of Judgments § 11 terrelated, may court feel the trial well ing “[s]ubject jurisdiction” matter as “the differently on remand and should have ‘authority adjudicate to type [of courts] ability sentencing to on all the undertake ”). controversy of involved in the action’ of counts conviction. power The circuit court’s [¶ 68.] to ZINTER, (concurring part Justice hear determine all aspects and of criminal dissenting part). and cases is derived from the South Dakota join on opinion I the Court’s [¶ 66.] V, Legislature. Constitution and Article I 3 Issues but dissent on Issue § 5 pro- of the South Dakota Constitution sentences). Eagle’s On (vacating Medicine pertinent part: vides in “The circuit courts Judge I with agree Issue Salter jurisdiction original in all cases ex- have alleged Konenkamp the error Justice any jurisdiction cept original as to limited in- part proceedings in the II information granted to other Legisla- courts question statutory authority of volved the Legislature ture.” And has not limited mat- subject rather than the circuit court’s any of aspect the circuit court’s criminal jurisdiction. Judge au- ter Salter’s federal jurisdiction. provides: SDCL 16-6-12 I highlight thorities distinction. write The circuit court has exclusive explain why to Dakota’s South constitu- jurisdiction try to and determine all tion, statutes, precedent require also felony, jurisdiction and original cases of recognition My only of the distinction. juris- concurrent with courts of limited disagreement analysis Judge with Salter’s provided by try law to diction is his additional conclusion that Medicine all cases of misdemeanor and determine objection necessary made the or for violation of proceedings actions preserve this issue harmless error re- ordinance, bylaw, police or other any plain is limited to view. Medicine he regulation political error review because did not raise his subdivisions. be- objection current II information these the circuit upon provisions, Based fore the II information And trial. “the power court had to hear and deter review, plain under error his sentences aspects mine” all of Medicine crim must be under Court Supreme affirmed any judicial pow inal case and to “exercise precedent. Calhoun, parties. er” over the See S.D. no cir- dispute [¶ 67.] There is that the jurisdiction at 269 Its N.W. . court sub- jurisdiction cuit had over this subject over the matter is clear.

ject matter. Court has long-defined This The on disagreement appeal “jurisdiction” power as: “the to hear and Chief arises from reliance the Justice’s subject-matter determine the in controver- State, opinion places Honomichl suit, sy parties adju- between to a [and] (S.D.1983). Honomichl, no any judicial over power dicate exercise 266, part II informations had been filed with Bryant, them[.]” Calhoun (1911) 266, at issue. Three (quoting respect 133 N.W. convictions which original opinion, adhered to its held Court did state members of this filing indict- had waived the of an a formal and sufficient that defendant “[w]ithout information, guilty.” a court does not ac- plea ment or information his Ho nomichl, (Wollman, J., and thus quire subject matter 333 N.W.2d at 800 punished for a may an accused not be dissenting). mod- at 798. But under the

crime.” Id.. majority’s only The Honomichl subject juris- matter understanding ern authority was Albrecht v. United other diction, longer this view is no followed.24 States, 273 U.S. 47 S.Ct. L.Ed. by a Honomichl was decided di- (1927). Albrecht, 333 N.W.2d at 798. justices would have vided Court. Two Bain, turn, upon parte in relied Ex 121 can waive the failure held that a defendant (1887). 781, 1, 7 30 L.Ed. 849 U.S. S.Ct. guilty pleading to file an information Bain, lan- Supreme Court utilized an information the failure to file is because guage analytically identical to that in Mee justices that jurisdictional. not Three held Supreme II. The Court held that after jurisdic- lack an information was a of superseding insufficient indictment —which defect, subject to tional which was purposes is the same as an information for majority au- The relied two waiver. today’s jurisdiction of of discussion—“the It relied on v. Mee thorities. first gone, and the court [was] [had] offense (Mee (1940), I), 335, 292 875 67 S.D. N.W. any right proceed no to further in the 589, rehearing, rev’d on 67 S.D. 297 N.W. progress of the case for want of an indict- (1941). cases, however, The Mee were 40 Bain, 121 at ment.” U.S. at 7 S.Ct. initially unusual this Court held because Honomichl, however, 788. After Bain entry plea filing of a without the of an Supreme a was overruled unanimous information the information. Mee waived Cotton, in Court United States v. 535 U.S. I, 340-41, at at 877. S.D. N.W. 122 S.Ct. 152 L.Ed.2d 860 Court, Only on reconsideration did the rule (2002). filing that the result of not an information rejected the 1887 Bain- 72.] Cotton point county was that “from on the [that] concept jurisdiction II as outdated. Mee jurisdiction court to proceed was without 629-30, Id. at at 1784-85. The S.Ct. in the case until the state’s attor- further that it Court observed was “somewhat ney had filed an information.” State v. expansive jurisdiction, notion of which was (Mee II), 589, 591, 297 Mee N.W. anything else[.]” more a fiction than Id. at (1941). 40, 41 But the Mee II failed Court (internal 630, 122 citations S.Ct. 1784-85 authority any to cite or even one sentence omitted). quotation marks The Court reasoning change position. for its As the Bain-Mee II concept ruled observed, later then Justice Wollman had jurisdiction in keeping was not with its recognized the Mee Court the distinc- “i.e., meaning: modern ‘the courts’ statuto subject jurisdiction tion between matter ry adjudicate power or constitutional ability adjudicate terms of a court’s (quoting case.’” Id. Steel Co. v. Citizens juris- certain of cases and a classes court’s Env’t, 83, 89, particular diction offense Better U.S. 118 S.Ct. over and the (1998)). defendant, 1003, 1010, 140 particular may “it well have L.Ed.2d opinion agrees reasoning 24. The Chief Justice's with the risdiction.” See id. If this were subject jurisdiction. (it not), definition of matter See involving correct is all trial errors supra opinion Chief Justice's 40. The flaw statutory juris- authorization would constitute opinion’s reasoning equates in the it subject dictional errors not to waiver. “statutory authority” “subject ju- with matter The Supreme justify Court went on to hot alone reversal of his habitual that, jurisdiction though rule even can nev offender conviction. In State v. Graycek, waived, right er be forfeited or (S.D.1985), this Court indictment can be waived. Id. at 122 held that the failure to refile a part II because, S.Ct. at 1785. Waiver can occur information after the original charges against as the Court had noted a number of its the defendant were dismissed and cases, post-Rum “defects in an indictment charges new were filed did not deprive the do not a court deprive power of its to trial court of to sentence the adjudicate 630-31, a case.” Id. at 122 defendant as a habitual offender. inAnd Alexander, (discussing (S.D. S.Ct. at 1785 Lamar v. United State v. 313 N.W.2d 33 States, 1981), mistrial, 240 U.S. 36 S.Ct. 60 L.Ed. following the defendant (1916) Williams, charged and United States v. under a new amended indict 341 U.S. 95 L.Ed. 747 ment S.Ct. with different language. Notwith (1951)). Ultimately, the expressly standing Court proceeding this new and the Bain, holding overruled that “indictment State’s failure to “file a supplemental new defects” and “indictment omissions” do not offender,” information for habitual jurisdiction. deprive a trial court of See Court found no error. Id. at 34. We did 631, id. at 122 (stating S.Ct. so because—somewhat like our case to overruled”). day “Bain is habitual criminal information had —an (but dismissed) been filed in This post- Court issued similar proceeding and the State had advised that Honomichl decisions in the habitual of- it intended to proceed on the allegations fender indicating context that the failure to that were in contained the information properly part file a II information does not from that dismissed proceeding.25 compromise jurisdiction. a circuit court’s Grooms, State 320- [¶ 75.] These decisions and the Cotton (S.D.1983), this Court held that failure ruling support Justice opinion Wollman’s copy part Honomichl, re-serve a of the II informa- in concluding that the failure tion on the defendant before his retrial did to subject information is not a file opinion jurisdiction The Chief Justice’s charged overlooks these of the court over the act cases when states that none of the cases in in [that] it case.” 67 S.D. at 292 N.W. at writing deal with "a situation in which today, 877. And like the case we consider part II opinion information had been dismissed.” reversed in Bain came in a case supra opinion See Chief Justice’s 39 n. 15. In where amendments to an indictment were foregoing each of the part cases there nowas determined to render the indictment "no in- Bain, II information had grand jury” been filed or served in dictment óf a at all. proceeding Cotton, the criminal in by which the defen- U.S. at 7 S.Ct. at overruled being prosecuted. dant was And there is no U.S. S.Ct. 152 L.Ed.2d proceeding Ultimately, distinction between in a Supreme criminal the United States action in which there is no information and may Court has concluded- that a defendant proceeding indictment, in a right any criminal action in which the just waive the reason, Cotton, information is dismissed. For this “dismissed” indictments. 535 U.S. at aside, opinion the Chief Justice's also overlooks sev- 122 S.Ct. at 1785. As an it should example, eral finally additional cases. For original part former be noted that the II infor- writing Justice today's Wollman’s came by in a case in mation in case was never dismissed reviewing jurisdiction which this Court was fully the circuit court or the State. As is more hereafter, ¶¶ following guilty pleas explained where "informations 77 and both infra were not filed the State on either offense.” the circuit court and the State acceded to Honomichl, I, Eagle's request N.W.2d at 798. In Mee to dismiss the ..., "no information had part proceed been filed but this amended II information and on original part [Court concluded that did it] not affect the II information. information, it II timely part filed a and the lack of defect jurisdiction

matter II informa- part Ho an amended may timely waived. See filed be an information (Wollman, J., nomichl, at 800 not eliminate the that added to but did tion stated Justice Wollman dissenting). As conviction. The originally alleged prior Amendment’s “If the Fifth rhetorically, the amended subsequently dismissed jury right grand to a guarantee information, stating expressly II part ... in the fed or indictment presentment on the proceeding that it was the dismissal personal privilege is a eral courts II information. Even originally part filed ..., may it not be why may be waived correct opinion if Justice’s were the Chief charging docu- alternative held that fol- II information remained part that no [ie., provided by an information] ment events, procedural course of lowing this VI, § the South Dakota Consti- Art. 10 of the habitual appeal concerns the issue may privilege that personal is a tution power not the State’s penalty, criminal (citing Barkman v. Id. also be waived?” in circuit court. There- initiate the case (5th Cir.1947)). Sanford, 162 F.2d fore, did not di- procedural these events joined was in his dissent Wollman Justice subject matter the circuit court of its vest Dunn. Because their view by then Justice the constitution and jurisdiction under jurisdiction adopted subject matter SDCL 16-6-12. Cotton, as well Supreme Court Although purported absence Judge courts cited in as the numerous jurisdic- part II information was not cling to an writing, we should not Salter’s defect, institu- it was a defect tional longer that is no 1887 view or a defect prosecution tion of the opinion The Chief Justice’s followed. Such in the II information itself. sup- case post-Cotton not cite one does prior motion to defects must be raised jurisdiction the- subject matter porting its SDCL 23A- trial or are deemed waived. overrule Honomichl ory. We should (Rule (Rule 12(b)); 23A-8-9 8-3 SDCL II infor- part that the lack of a now hold 12(f)). it because does mation is waivable subject mat- circuit courts of their divest Rule Required motions under cases. jurisdiction over criminal Un- ter 12(b) objec- range from “[d]efenses V, § the Dakota der article 5 of South in institution of based on defects the tions 16-6-12, the cir- Constitution and SDCL 23A-8-3(l), to prosecution;” the SDCL subject jurisdiction— matter cuit court’s objections based on de- “[defenses adjudicate proceed- such power its information!;]” in indictment or fects the question.26 into ings be called 23A-8-3(3). lies range —cannot SDCL Within objection upon based the dis- a defense or also not lose track of We should part an amended II information missal of in this case. In the course what occurred offend- the continuation of the habitual single proceeding, a criminal the State dismissed, Moreover, may pro- properly been the State even if we to continue to were proceedings a subject habitual criminal ceed with follow the now discredited view of filing a new habitual jurisdiction expressed second case without as in Honomichl matter II, long as the State information as over the habitual criminal and Mee proceed on the clearly gives notice that it intends to proceedings in this criminal attached part II informa- original part allegations contained in the case because the State filed Alexander, 313 gave no- tion from the dismissed case. II habitual criminal information and Analytically, this is no proceed allegations N.W.2d at its intent to on the tice of in the case we different than what occurred information. As this Court ruled in in that Alexander, today. though consider even case has proceedings er under a previously lenging] filed an indictment for failure to charge II part Concluding information. otherwise an offense” is plain error); reviewable for 12(b) controverts the intent of Rule Blade, United States v. 336 F.3d 756- ‘sandbag- (8th restrict “the defense tactic of Cir.2003) Cotton, (citing 535 U.S. at ” counsel, ging’ where defense recognizing 1783; at S.Ct. United States v. forego raising defense “would the defect McBride, (8th 862 F.2d Cir. trial, objection before when a successful 1988)) (applying plain error review to the merely would result an amendment of denial of a motion for new trial upon based (or pleading pleading).” new indictment). a defect in an al., Wayne R. LaFave et Criminal Proce- error, [¶ 80.] To demonstrate plain 19.1(d) (3d ed.2007).27 Here, § dure defendant must establish that there was: dismissal of the amended II informa- (1) (2) error, (3) that is plain, affecting tion and continuation of proceedings under rights; substantial and only may then original part only II was not clear to we exercise our discretion to notice the Eagle, he requested proceeding (4) error if it seriously affects the fair- original part on the information his ness, integrity, public reputation motion to dismiss the amended II. judicial proceedings. majority today Yet the would reward Med- Olvera, State v. icine for his sandbagging in the Jones, (quoting assertion of this objec- claimed defense or ¶7, 14, 206). S.D. tion. This should not occur under rules This is the plain same error standard uti- specifically designed to prevent prac- such lized Supreme Cotton, Court. See tices. 631-32, 535 U.S. at 122 S.Ct. at 1785. In [¶79.] did not make analyzing analogous defective indict- the required motion before trial. Because ment proceeding, Court Cotton the claimed error was not raised before skipped immediately to the last element of 23A-8-3(l) trial required by SDCL Supreme the test. The Court concluded (Rule 12(b)), objection un- waived that the indictment error in that case did (Rule 12(f)). der SDCL 23A-8-9 There- fairness, not “seriously affect integrity, fore, best, the claimed defect in the or public reputation judicial proceed- habitual criminal proceedings subject “ ings!,]” because the evidence was ‘over- plain review for error. “Where an issue ” “ whelming’ ‘essentially uncontro- preserved by has not objection at been ” 1786) 632-33, verted.’ Id. at 122 S.Ct. at trial, our review is limited to whether the States, (quoting Johnson v. United trial court plain committed error.” State 461, 470, U.S. 117 S.Ct. Bowker, 61, ¶45, v. 754 N.W.2d (1997)). L.Ed.2d 718 56, 69. See also United States Wash- (10th Cir.2011) ington, Cotton, 653 F.3d [¶ 81.] Like the case in Medi- (stating “late-blooming that a Eagle claim cine fairness, [chal- can claim no lack of Judge 27. Salter’s opportunity concurrence in result cor- for corrective measures such as rectly objections may (or notes that pleading defenses and the "amendment of a a new preserved appellate al., be pleading).” Wayne review if the trial See 5 R. LaFave et (3d. given 19.1(d) ed.2007). court has been opportunity § an to cor- Criminal Procedure supra Judge rect claimed See Eagle’s sandbagging deprived errors. Salter’s Medicine here opinion Although Eagle opportunity the State of that to file a new or objection Therefore, sentencing, raised an pleading. before SDCL amended under (Rule 12(b)) rules, waived, required, objection 23A-8-3 relegating that the was further objection provide objection plain be raised before trial to to error review. objected at trial. See 535 never part in the was reputation public

integrity, 634, 122 at S.Ct. at 1787. proceedings because U.S. II habitual criminal disputed ap- on history is not criminal his reasons, I respectfully these For II Additionally, original part peal. I affirm Medi- as to Issue 3. would dissent he was timely filed and information and sentences as Eagle’s cine convictions it trial on the arraigned on before duly habitual offender. charges. criminal principal and habitual Thus, habitual specific notice of the he had ultimately allegation that was

offender Further, II infor- part the amended

tried. on Medicine

mation was dismissed trial, Eagle and Medicine

motion before motion part as of his

specifically requested original proceed case that “the 2013 S.D. 61 was filed at the [p]art II information that Matter of the In the DISCIPLINE and the case.” The State [the] initiation of TORNOW, R. OF Shawn exactly as Medicine proceeded circuit court Attorney at Law. requested. The State dismissed part explicitly II information amended No. 26430. that “[t]he in its written dismissal

stated Dakota. Supreme Court of South II original part State does not dismiss the proceed and intends to with The the trial on such matter.” Argued May proceeded origi- to trial on the State then 7, 2013. Aug. Decided objection no

nal II information with Eagle. whatsoever from Medicine “ a game ‘A criminal trial is not in the may

where counsel lie defendant’s objections

weeds and hold back motions or go very prosecu heart of the of attack ample

tion. There exist means

ing sufficiency charge prior ” v. Lachow trial. SDCL 23A-8-2.’ State (S.D.1982)

itzer, Williams,

(quoting (S.D.1980)). appeal, Even on challenge the ex does validity prior conviction

istence or Thus, para guilty

he was found of. Cotton, real threat ... to the

phrase “[t]he integrity, public reputation

‘fairness if

judicial proceedings’ would be [Medicine un-

Eagle], despite overwhelming and prior ... his [of

controverted evidence pre

conviction to receive sentence was] committing

scribed for those less substan

tial ... because of an error that offenses

Case Details

Case Name: State v. Medicine Eagle

Court Name: South Dakota Supreme Court

Date Published: Aug 7, 2013

Citation: 835 N.W.2d 886

Docket Number: 26346

Court Abbreviation: S.D.