State v. Corean , 2010 S.D. LEXIS 149 ( 2010 )

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2010 S.D. 85IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JAMIE COREAN, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE FOURTH JUDICIAL CIRCUIT
BUTTE COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JOHN W. BASTIAN
Judge
* * * *
MARTY J. JACKLEY
Attorney General
FRANK GEAGHAN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
DAVID L. CLAGGETT Attorney for defendant
Spearfish, South Dakota and appellant.
* * * *
ARGUED ON AUGUST 25, 2010
OPINION FILED 11/03/10
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ZINTER, Justice
[¶1.] Jamie Corean was convicted of accessory to murder and aiding and
abetting aggravated kidnapping. After the conviction but before we considered her
appeal, the principal in the murder and kidnapping provided testimony claiming
that Corean had no knowledge of or involvement in the offenses. As a result of the
new evidence, we remanded the matter to the circuit court for supplementation of
the record, further discovery, and consideration of a motion for new trial. Following
an evidentiary hearing, the circuit court denied relief. The court found that the new
evidence would not have produced an acquittal or changed the outcome of the trial
because the principal’s testimony was irrelevant, biased, not reasonable, and lacked
credibility. Corean now appeals the denial of her renewed motion for new trial and
motion for judgment of acquittal. She also argues that the circuit court erred in:
admitting co-conspirator statements; instructing the jury; finding that there was
sufficient evidence to support the convictions; and, in imposing a mandatory life
sentence. We affirm.
Facts and Procedural History
[¶2.] On Monday, July 12, 2004, Troy Klug and Robert Highley went to
Cynthia Kindall’s home in Rapid City to acquire methamphetamine. Duana Beebe,
Klug’s girlfriend, testified that Klug wanted “to get [the] drugs as a front” 1 so he
could repay a drug debt to Kindall. Kindall was also Beebe’s drug supplier. The
1. Beebe testified that a front is “when someone will give [another person] drugs
without a money transaction and then they repay [the person who gave them
the drugs] after they make money off of the drugs.”
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record reflects that Tory Tiegen was present, he had been residing in Kindall’s
house, and Klug’s proposed drug purchase was part of an ongoing course of illegal
drug trafficking at this house involving both Tiegen and Kindall.
[¶3.] When Highley and Klug arrived, they met Kindall and Tiegen.
Highley was asked to leave, and he left in Klug’s vehicle. Kindall left shortly
thereafter. When Kindall returned she observed that Klug was alive, but Tiegen
had bound Klug with duct tape. Kindall and Tiegen loaded Klug into the trunk of
Kindall’s car (a black Nissan) and left.
[¶4.] Tiegen and Kindall arrived at Beebe’s house that Monday evening
around 9:00 p.m. Beebe asked Kindall where Klug was, and Kindall responded that
she had kicked Klug out of her house. Beebe asked Kindall and Tiegen to leave.
[¶5.] James Kusick testified that Tiegen arrived at Kusick and Corean’s
house (“Corean’s house”) in Belle Fourche on Tuesday morning, July 13, between
6:00 and 7:00 a.m. Tiegen drove Kindall’s car into the garage, and once inside,
Tiegen opened the trunk. Klug was in the trunk and was bound with duct tape.
According to Kusick, Klug “couldn’t see, his arms were duct taped, his legs were
duct taped.” Tiegen pulled Klug out of the trunk and “threw him on the floor.”
Tiegen indicated that Klug was “a rat, a snitch.” Tiegen then kicked Klug in the
stomach, and Kusick “heard [Klug] moan.” When Kusick went back inside the
house, he told Corean that Tiegen “had somebody with him.” Corean did not
suggest that they should intervene.
[¶6.] Tiegen testified that he put Klug in a tool box in the garage at Corean’s
house that morning. Kusick testified that he “wanted nothing to do with” the
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situation, and he left for work. Corean indicated in prior testimony from Tiegen’s
trial that after she went to work, she returned to see if Tiegen was gone. 2 When
she saw that Tiegen was gone, she locked the garage.
[¶7.] On the way home from work that afternoon, Kusick told Eric Haar that
Tiegen had left Klug at Corean’s house. Kusick asked Haar to check the tool box in
the garage. Kusick testified that Haar opened the tool box, and Kusick “was
standing by the door and [he] could see somebody in it.” Kusick testified that when
Corean arrived home after work that afternoon, “I remember us telling her that
[Tiegen] left this guy here and he’s still here.” According to Kusick, Corean did not
suggest that someone should check on Klug’s well-being.
[¶8.] Abby DeJong, Corean’s best friend, testified that she arrived at
Corean’s house on Tuesday, July 13, around 6:30 p.m. Corean told DeJong that
Tiegen had put a person in a box in her garage. DeJong testified that Corean also
told her that the person was being “held against [his] will.” When DeJong told
Corean, “I think we need to do something,” Corean responded: “No, the cops will get
them.” When DeJong attempted to convince Corean to call the police, Corean told
her: “No, you’re not going to.” When DeJong told Corean that if DeJong were in the
tool box, she “would want someone to help me,” Corean again replied: “No, the cops
will get them.”
[¶9.] Tiegen and Kindall returned to Corean’s house late Tuesday evening.
DeJong testified that when Tiegen and Kindall arrived, they had drugs with them
2. The State introduced Corean’s prior testimony.
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and everyone – Tiegen, Kindall, Haar, DeJong, and Corean – began using
methamphetamine. According to DeJong, she asked Tiegen in Corean’s presence
why Tiegen was keeping Klug in the tool box. DeJong testified that Kindall spoke
up and stated “that Klug had owed them money.” Tiegen and Kusick went for a
ride later that evening, and when they returned to Corean’s house, Corean, DeJong,
Haar, and Kindall were still together in the living room using drugs. Before going
to bed that evening, Kusick saw Tiegen and Corean talking together in the kitchen.
[¶10.] Tell Cook also lived in Belle Fourche. He testified that Tiegen and
Kindall arrived at his house around 2:00 a.m. on Wednesday morning, July 14. 3
3. The exact day when Tiegen first arrived at Cook’s house – Tuesday or
Wednesday – was disputed. At Corean’s post-trial hearing, Tiegen testified
that he and Kindall went to Cook’s house on Tuesday morning, between 2:00
and 4:00 a.m. Once there, Tiegen testified that he “used some meth.”
According to Tiegen, he and Cook then drove Klug to a gravel road, “and
scared him some.” Tiegen testified that Cook “punched [Klug], kicked him,
hollered at him some.” Tiegen and Cook then put Klug back in the trunk of
the car and returned to Cook’s house. According to Tiegen, he and Kindall
then went to Corean’s house later Tuesday morning, “some[time] between
6:00 and 7:00.”
At Corean’s trial, Kindall also testified that she and Tiegen went to Cook’s
house on Tuesday morning, before going to Corean’s house. Kindall conceded,
however, that because she had been using drugs, she was not “certain of the
days and dates during the time period,” that she did not “remember the dates
very well,” and that she did not “remember Monday night; I don’t remember
the dates[.]”
Cook’s testimony at Corean’s trial was, however, unequivocal that Tiegen and
Kindall arrived at his house on Wednesday morning, not Tuesday. Cook
testified four different times that Tiegen first arrived early Wednesday
morning. Cook was asked, “Is there anything you can think of or is there any
reference that you have as to why it was early Wednesday morning?” Cook
replied, “Because I was going on vacation, I had Friday off work and so that’s
a good reference point to this whole thing. I had plans to go to Denver to a
race track and it was just two nights before that.” Further, according to
(continued . . .)
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According to Cook, Tiegen took Cook outside to Kindall’s vehicle and showed Cook
that Klug was in the trunk. Klug’s hands, feet, and head were bound with duct
tape, and he was lying face down in the trunk. Cook testified that Klug was still
alive because he heard Klug moan and saw him reflex when Tiegen punched him in
the back. Tiegen told Cook that he was either going to drive to Denver to turn Klug
into Klug’s parole agent, or he was going to drive to North Dakota and dig a hole to
bury Klug.
[¶11.] Tiegen and Kindall returned to Corean’s house around 5:30 a.m.
Wednesday morning. Kusick testified that later that morning Tiegen told Kusick
that Tiegen had “woke [Klug] up” and that Tiegen was leaving. Haar testified that
he “remember[ed] asking [Kusick later], you know, what happened, was [Klug] okay
or what’s up and [Kusick] said that [Tiegen] told him that it took a while to get
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(. . . continued)
Cook, he and Tiegen never drove Klug to a gravel road, and Cook never
struck Klug. Rather, Cook testified that after Tiegen showed Cook that Klug
was in the trunk of the car, Cook allowed Tiegen and Kindall to stay at his
house. When Cook left for work on Wednesday morning around 5:00 a.m.,
Tiegen and Kindall were still there.
The jury was required to resolve this factual dispute. From Cook’s testimony,
the jury could have found that Klug was still alive Wednesday morning.
Even if Tiegen and Kindall were at Cook’s house sometime Tuesday morning,
there is no dispute that Tiegen went to Corean’s house on Tuesday morning,
and there is substantial evidence that Corean acquired knowledge on
Tuesday that Klug was alive and being held against his will in the tool box in
her garage.
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[Klug] up, but he got him up.”4 Before Tiegen left, he instructed Kusick to “wash
the [tool] box out.” Kusick washed the tool box at a car wash but there was
“absolutely nothing” inside the tool box to wash. According to Kusick, “It had
already been cleaned.”
[¶12.] On Wednesday evening, Kusick and Corean were at their house with
DeJong and Haar. According to Kusick, he “wanted to tell the cops,” but “[w]e had a
conversation that none of us would ever talk about it, we’d never say anything.”
Kusick also remembered “hearing [Corean] say we need an alibi.” DeJong testified
that when she talked to Corean on Wednesday, Corean informed DeJong that
Tiegen was concerned about whether he could trust DeJong. According to DeJong,
Corean reassured Tiegen not to worry about DeJong, and that Corean would “take
care of it.”
[¶13.] Tiegen returned to Cook’s house the following morning, Thursday, July
15. Tiegen told Cook that Tiegen had put Klug in the tool box, and that Tiegen had
left Klug there all day. When Cook asked Tiegen if he had given Klug any water,
Tiegen replied: “No, I didn’t give him any water, too late for that anyway.” Cook
testified that Tiegen boasted that he went to the tool box several times during the
day just to beat Klug. He told Cook that he felt the bones crush in Klug’s face and
“that’s what probably did him in[.]”
[¶14.] Kindall and Tiegen left Belle Fourche for Montana on Thursday, July
15. Kindall indicated that at that time, Klug was dead and still in the trunk of her
4. Haar indicated that he was not sure when this conversation occurred, but
that it was either Tuesday night or Wednesday.
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car. Once in Montana, they drove into a canyon where Tiegen buried Klug by a
fallen tree.
[¶15.] Tiegen was convicted of Klug’s kidnapping, and on January 16, 2008,
this Court affirmed the conviction in State v. Tiegen, 2008 S.D. 6, 744 N.W.2d 578.
On November 18, 2008, Tiegen was indicted for the first-degree murder of Klug.
Following plea negotiations, Tiegen pleaded guilty to first-degree murder. Before
his guilty plea, he had been subpoenaed to testify at Corean’s trial, but he exercised
his Fifth Amendment right to remain silent. Corean was subsequently convicted of
accessory to murder in violation of SDCL 22-3-5 and aiding and abetting aggravated
kidnapping in violation of SDCL §§ 22-19-1(2) and 22-3-3. Following Corean’s
conviction and appeal to this Court, she moved for a judgment of acquittal or new
trial based on newly obtained testimony Tiegen would then provide following his
plea. We remanded the matter for the circuit court’s consideration.
[¶16.] The circuit court conducted a hearing in which Tiegen testified.
Tiegen claimed that Corean “never indicated” knowledge of the kidnapping. Tiegen
also suggested that Klug was dead by the time Corean learned about Klug. Tiegen’s
credibility was, however, attacked by showing bias in favor of Corean. 5 Tiegen
5. Tiegen testified:
Q: Jamie Corean has been the only one that has never given
evidence against you, hasn’t she?
A: I guess I can’t really say that, I mean there’s [sic] people in
the courtroom that have evidence against me.
***
Q: One of the conditions of your plea agreement with the State
was that we make an offer to Jamie Corean, correct?
A: That was in this plea agreement, correct.
(continued . . .)
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further acknowledged that Corean was home when Tiegen showed Kusick that Klug
was in the trunk of the car. Tiegen finally acknowledged that he did not know if
Corean went inside the garage at any time on Tuesday.
[¶17.] At the conclusion of the hearing, the circuit court denied Corean’s
motions for judgment of acquittal and new trial. The court found that Tiegen’s
testimony was biased and lacked credibility, and that it was merely cumulative and
impeaching. The court ultimately found that Tiegen’s evidence was insufficient to
have produced an acquittal or changed the outcome of the trial.
I. Whether Tiegen’s post-trial testimony requires a new trial.
[¶18.] Corean argues that the circuit court erred in denying a new trial
because Tiegen’s testimony was “highly reliable” and it “undermined confidence in
the outcome of her trial.” “To succeed on a motion for a new trial based on after-
discovered evidence, a defendant must prove that ‘(1) the evidence was undiscovered
by the movant at the time of trial; (2) the evidence is material, not merely
cumulative or impeaching; (3) that it would probably produce an acquittal; and (4)
that no lack of diligence caused the movant to fail to discover the evidence earlier.’”
State v. Shepard, 2009 S.D. 50, ¶ 20, 768 N.W.2d 162, 167 (quoting State v. Reyes,
2005 S.D. 46, ¶ 28, 695 N.W.2d 245, 255). “[N]ew trial motions based on newly
discovered evidence request extraordinary relief; they should be granted only in
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(. . . continued)
Q: You were rewarding her for her loyalty, weren’t you?
A: I wouldn’t put it that way, I would put it in the fact that I
felt she was wrongly convicted and I was doing what I could
because I felt like she really got a raw deal.
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exceptional circumstances and then only if the requirements are strictly met.” State
v. Gehm, 1999 S.D. 82, ¶ 15, 600 N.W.2d 535, 540. “Whether a new trial motion
should be granted is left to the sound discretion of the trial court, and this Court
will not disturb the trial court’s decision absent a clear showing of abuse of
discretion.” Id. ¶ 12, 600 N.W.2d at 539.
[¶19.] There is no dispute that Tiegen’s testimony was not available and was
undiscoverable by Corean at the time of trial. The circuit court, however, denied a
new trial on requirements (2) and (3), finding that Tiegen’s testimony was merely
cumulative and impeaching, and that the evidence was insufficient to probably have
produced an acquittal. We agree with the circuit court. Corean does not dispute the
following findings indicating that Tiegen’s testimony was merely cumulative and
impeaching:
 Tiegen confirmed that he first went to the Corean
residence on the morning of July 13, 2004. This fact was
confirmed by Kusick and the testimony of DCI agent Brent
Gromer who testified that Corean admitted that this had
occurred.
 Tiegen confirmed the testimony of James Kusick that
Tiegen had displayed Troy Klug to Kusick in Corean’s
garage on Tuesday morning and that Corean was present
in the residence at this time.
 Tiegen confirmed that Troy Klug was alive on the morning
of July 13, 2004, and that even later in the morning Troy
Klug would have been well enough to walk away.
 Tiegen confirmed that after Kusick observed Troy Klug in
the garage, Kusick left the garage and had a conversation
with Corean.
 Tiegen testified that he left Troy Klug alive in Corean’s
garage on the morning of July 13, 2004, after Kusick and
Corean left for work.
 Kusick testified that on the morning of July 13, 2004, he
told Corean that Tiegen had someone that he was holding
in the garage.
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 Tiegen’s testimony had no impact on the issue of Corean’s
knowledge of Troy Klug’s presence in her garage at a time
when Troy Klug was alive and at a time when Corean had
an opportunity to intervene on Troy’s behalf; the jury
heard the evidence that Corean chose to provide a place for
Tiegen to hold Troy Klug.
[¶20.] The court also found that Corean’s friends’ testimony confirmed
Corean’s knowledge of Klug’s confinement in her garage. The court noted: “DeJong
and Haar testified that on Tuesday between 6:00 and 7:00 p.m., a conversation
occurred on the porch of the Kusick/Corean residence and that Haar, DeJong and
Corean discussed the presence of a person in a box in the Kusick/Corean garage.”
The court further noted that “DeJong testified that she told Corean more than one
time that they should try to help the person being held in the garage and Corean
refused.” Finally, the court noted, “[w]hen Corean returned home on Tuesday,
Kusick testified that he spoke with her and told her that there was still someone
being held in the garage.” In light of all evidence, we agree with the circuit court
that Tiegen’s testimony was merely cumulative, it tended to impeach other
witnesses, and it would not have affected the outcome of the trial.
[¶21.] Corean, however, emphasizes that Tiegen testified that Klug was dead
by 3:00 p.m. on Tuesday, July 13. Corean argues that because Klug “was dead prior
to [her] knowledge [of the kidnapping], Corean obviously [can] not be guilty of any
kidnapping or murder charge.” Corean contends that Finding # 40 – in which the
circuit court found that Tiegen’s testimony “regarding the time of the death of Troy
Klug lacks credibility,” – is clearly erroneous. We disagree.
[¶22.] Tiegen’s credibility was highly suspect. Kindall testified that at the
time of the kidnapping, Tiegen: had been using methamphetamine; had been awake
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for approximately one week; and, was not thinking clearly. We also observe that
Tiegen essentially conceded bias, testifying that (1) Corean was the only one who
had not testified against him, (2) he bargained for a plea agreement for Corean, and
(3) he believed Corean was wrongly convicted, “really [getting] a raw deal.” Finally,
a number of witnesses contradicted Tiegen. The circuit court noted, “[t]he
testimony of James Kusick, Eric Haar and Abigail DeJong regarding the time of
death [was] corroborated by the testimony of Dr. Neal Haskell, an entomologist,
who found that Troy Klug’s death occurred on Wednesday, July 14, 2004, at the
earliest.” 6 Cook also testified that Troy Klug was still alive on the morning of
Wednesday, July 14. Therefore Finding # 40 was not clearly erroneous. 7 We agree
6. Although Corean argues that “the entomologist’s testimony was based on an
erroneous date provided to the entomologist by the prosecution,” the circuit
court’s findings reflect that it considered not only the entomologist’s opinion,
but also the testimony of Cook, Haar, Kusick, and DeJong in making its
findings regarding the time of death. Further, the court provided an
instruction informing the jury that: “You are not bound to accept an expert’s
opinion as conclusive, but should give to it the weight to which you find it to
be entitled. You may disregard any such opinion if you find it to be
unreasonable.”
7. Corean also argues that Finding # 26 is clearly erroneous. In that finding,
the court found: “Eric Haar and Kusick returned to the Kusick/Corean
residence on Tuesday afternoon at sometime between 4:00 p.m. and 5:00 p.m.
At that time they observed [Klug] alive in the garage in the [tool] box.”
Corean claims that Kusick and Haar never testified that Klug was alive at
that time. Our review of Kusick’s and Haar’s testimony supports Corean’s
claim. Kusick testified that he saw Klug only “from a distance” when Haar
opened the tool box. Kusick did not testify that he observed Klug alive at
that time. Similarly, Haar never testified that he saw Klug alive. Rather,
Haar said that he “only caught a glimpse” of Klug before he shut the tool box,
and that “there was no movement, no nothing.” Regardless of whether these
two witnesses observed Klug alive on Tuesday afternoon, Kusick testified
that on Tuesday morning, Corean knew that Klug was in the tool box. And,
other witnesses established that Corean was aware of and aided Klug’s
(continued . . .)
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with the circuit court’s finding that: “Tiegen’s testimony [had] no impact on the
issue of Corean’s knowledge of Troy Klug’s presence in her garage at a time when
Troy Klug was alive and at a time when Corean had an opportunity to intervene on
Troy’s behalf[.]” 8 For these reasons, the circuit court did not abuse its discretion in
denying Corean’s motion for a new trial.
[¶23.] Corean also argues that a new trial is required because the State
committed a Brady violation. Corean contends that the State, through its “actions”
in pursuing a capital-murder charge against Tiegen, caused Tiegen to exercise his
Fifth Amendment rights, “prevent[ing Corean] from obtaining the [exculpatory]
evidence Tiegen had to provide” until after her trial. See generally Rodriguez v.
Weber, 2000 S.D. 128, ¶ 14, 617 N.W.2d 132, 138 (“Due process under the
Fourteenth Amendment of the United States Constitution, and Article VI, § 2 of the
South Dakota Constitution, requires the State to reveal exculpatory evidence to the
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(. . . continued)
imprisonment Tuesday afternoon and evening. Finally, the jury heard Cook’s
testimony that Klug was still alive on Wednesday.
8. Corean objects to Findings ## 24 and 25, in which the court found that
according to Agent Gromer’s testimony, “Corean told [Kusick] that she did go
back [to the garage] in the morning and that she checked and Tiegen was
gone and she locked everything up.” The court then found that “Tiegen never
mentioned that the garage was locked and offered no explanations to how he
was able to even get in the garage which Corean claimed was locked.”
Corean claims that these findings are erroneous because Agent Gromer
testified only that “[Kusick] had told [Corean] to check and lock up the shed.
I don’t remember if she said she did that; but I assumed that she [did]
because [Kusick] told her to.” (Emphasis added.) Regardless of this
ambiguity, the jury heard Corean’s own testimony (originally provided at
Tiegen’s trial) that she returned to her house later Tuesday morning and
locked the garage.
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defense.” (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10
L.Ed.2d 215, 218 (1963))). In considering whether a Brady violation has occurred,
three questions must be answered:
1. Was the evidence at issue favorable to the Defendant because
it is exculpatory or impeaching;
2. Was the evidence suppressed by the State either willfully or
inadvertently; and
3. Did prejudice ensue from the suppression.
State v. Piper, 2006 S.D. 1, ¶ 19, 709 N.W.2d 783, 795. If all three questions are
answered in the affirmative, a circuit court must grant a new trial. Id.[¶24.] Corean argues that Tiegen’s testimony was unavailable at her trial
because the State’s action in prosecuting Tiegen for first-degree murder as a capital
offense delayed his guilty plea. But Corean cites no authority suggesting delay
caused by a collateral prosecution constitutes State action withholding evidence
within the meaning of Brady. More importantly, the State was not the cause of
Corean’s inability to acquire Tiegen’s testimony. Tiegen testified that at the time of
Corean’s trial, he had already been offered the plea agreement that eliminated a
possible death sentence. Therefore, the State’s decision to initially pursue a capital
murder prosecution did not delay the availability of Tiegen’s testimony. As Tiegen
conceded, the State had removed the death-penalty potential through its plea offer,
and Tiegen simply elected “not to accept [the plea agreement] at that time.”
Consequently, even if a Brady violation could occur as the result of a collateral
prosecution, Corean failed to establish that any State action caused a Brady
violation.
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II. Whether the circuit court erred in admitting co-conspirator statements.
[¶25.] The State introduced three letters that Tiegen wrote to Kindall and
Cook while Tiegen was incarcerated in the Pennington County jail. The circuit
court admitted the letters under SDCL 19-16-3(5) (Rule 801(d)(2)) as statements of
co-conspirators. SDCL 19-16-3(5) (Rule 801(d)(2)) provides that “[a] statement is
not hearsay if it is offered against a party and is . . . [a] statement by a co-
conspirator of a party during the course and in furtherance of the conspiracy.” A
circuit court’s “decision to admit [ ] statements under SDCL 19-16-3(5) is reviewed
under the clearly erroneous standard.” Tiegen, 2008 S.D. 6, ¶ 27, 744 N.W.2d at
588.
[¶26.] “Statements made by a co-conspirator are admissible whether or not a
conspiracy has been charged.” State v. Smith, 353 N.W.2d 338, 342 (S.D. 1984).
“When there is substantial evidence of a conspiracy, whether the offense charged is
conspiracy or not, everything said by [a] conspirator in furtherance of the common
purpose is deemed to have been said [on] behalf of all parties to the conspiracy.”
State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976). “A statement by a co-conspirator of
a party during the course and in furtherance of the conspiracy is thus admissible
against the party as an admission.” Id. It is settled that “[t]o satisfy the test of
admissibility [under SDCL 19-16-3(5) (Rule 801(d)(2))], there need only be a
showing that there is some reasonable basis for concluding that the statement was
made in furtherance of the conspiracy.” Tiegen, 2008 S.D. 6, ¶ 27, 744 N.W.2d at
588. “Once a conspiracy ha[s] been shown, the burden is upon the conspirator to
show it has ended.” Kidd, 239 N.W.2d at 864.
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[¶27.] The first letter was from Tiegen to Kindall. The letter advised, “just
remember. Do not discuss you[r] case with anyone!” Tiegen cautioned: “You also
need to realize that the interview room (where you talk to your lawyer) is bugged.
They can’t use the tapes but what they hear could send them places we don’t need
them going!” Tiegen then warned Kindall: “There are some people we don’t want to
put any further pressure on. Ok. (James [Kusick] and Jamie [Corean].) Savvay?” 9
[¶28.] The circuit court ruled that this letter was “a clear instruction to
Kindall in furtherance of the conspiracy to conceal the crime.” It found that it was
“a clear instruction that [Kindall] conduct herself so that co-conspirators, [Kusick]
and [Corean], are not implicated or involved.” More specifically, “[t]his
correspondence [was] meant to conceal Kusick and [Corean] and the conspiratorial
activities that occurred on July 13, 2004, involving the kidnapping and murder of
Troy Klug.” We agree. “A conspiracy does not terminate with the commission of the
underlying overt act. It continues thereafter so as to include not only the
substantive offense but also acts and declarations directed at concealing that
offense.” State v. Jenner, 434 N.W.2d 76, 82 (S.D. 1988). “The reason for including
9. In addition to her hearsay objection, Corean objected to this letter, pointing
out that at the post-trial hearing Tiegen testified it was his handwriting but
he did not remember writing the letter. Corean also pointed out that the
words “(James and Jamie.) Savvay?” are lighter in color, and Tiegen testified
that he could not remember if he wrote those words. But there was evidence
from which the jury could have concluded that Tiegen authored the entire
letter. Janice Tweedy, a forensic document examiner, testified: “I looked at
that area because it was lighter than the other area around it.” She opined:
“I didn’t see any evidence of it being a simulation or a forgery.”
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these subsequent efforts at concealment is that such acts and declarations further
the conspiracy by allowing the co-conspirators to escape punishment.” Id.[¶29.] The second letter was from Tiegen to Cook while both were
incarcerated in the Pennington County jail. Tiegen wrote: “Even if they do find
some so-called physical evidence, where the hell are they going to get their DNA to
compare it to?” He assured Cook: “If we were to be convicted they would have to
find the guy. And believe me they ain’t gonna find nobody unless someone else
planted somebody.” Tiegen then bragged: “It may have taken me a while to decide
what to do but once I figured it out, it was the best plan, and I exercised it with
grinding precision.” Tiegen concluded: “Don’t worry about them finding a body!”
[¶30.] The circuit court found these statements were “boasts . . . used by
[Tiegen] to obtain the confidence of one involved in the conspiracy.” The court
further found these statements “were made by a co-conspirator (Tiegen) to allay
apprehension that Cook may have . . . to insure future good relations among the co-
conspirators.” We agree with the circuit court’s ruling. Bragging, “puffing, boasts,
and other conversation . . . are admissible when used by the declarant to obtain the
confidence of one involved in the conspiracy.” Smith, 353 N.W.2d at 344. With
regards to Tiegen’s statement to not “worry” about finding a body, “[s]tatements
made by a co-conspirator to allay suspicions are admissible . . . as are statements
made by a co-conspirator to allay apprehensions that potential co-conspirators may
have with respect to the conduct of another co-conspirator and designed to ensure
future good relations among the co-conspirators.” Id.
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[¶31.] The third letter was from Tiegen to Cook (nicknamed “Chopper”)
stating: “Yeah, you know that this was one of the nastiest things I have ever done . .
. one of the nastiest. . . . If a guy’s gonna make fish food he just as well put it in
bite-size pieces right!” Tiegen went on: “What the hell. It wasn’t my first rodeo and
I’m sure it won’t be my last if I stay in the business I’ve been in.” He then told
Cook: “I want you to know Chopper you are now a part of a group that is bigger and
more powerful than you will ever know.” And: “When we make it through this it
will be official.”
[¶32.] The circuit court also found these statements “were made by a co-
conspirator (Tiegen) to obtain the continuing confidence of another co-conspirator
(Cook),” and that they were “efforts to conceal the crime.” We agree. Like the
second letter, this letter amounted to “puffing, boasts, and other conversation” that
Tiegen used to obtain the confidence of a co-conspirator. See id. The statements
were also made “by a co-conspirator to allay apprehensions that potential co-
conspirators may have with respect to the conduct of another co-conspirator and
designed to ensure future good relations among the co-conspirators.” See id.
[¶33.] Corean, however, argues that the letters were inadmissible because
“she was not a co-conspirator of Tiegen’s under any theory,” and that the State
failed to meet its burden of proving that Corean was part of a conspiracy to kidnap
Klug. We disagree.
[¶34.] There is no dispute that Tiegen and Kindall conspired to kidnap and
murder Klug. And:
It is well settled that where the existence of a conspiracy is
shown, only slight additional evidence is required to connect a
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particular defendant with the conspiracy. A single act may be
the foundation for drawing an actor within the ambit of a
conspiracy if that act is such that one may reasonably infer an
intent to participate in the unlawful enterprise.
Estate of Gibbs, 490 N.W.2d 504, 508 (S.D. 1992). Further, “because conspiracy by
its very nature is often not susceptible to proof by direct evidence, the existence of
an agreement may be inferred from all the surrounding facts and circumstances,
including the acts and declarations of the alleged co-conspirators that may be
indicative of their concerted action toward a common unlawful goal.” Jenner, 434
N.W.2d at 81-82. Therefore, when a defendant “is present at the scene of a crime,
any conduct promoting or facilitating, however slightly, the commission of a crime,”
may be sufficient. Estate of Gibbs, 490 N.W.2d at 508.
[¶35.] In this case, the evidence established that Corean was at her house
when Tiegen arrived with Klug in the trunk of the car. Thereafter, Kusick informed
her that Klug had been kidnapped by Tiegen and Klug was being held against his
will in her garage. We agree with the circuit court’s observation that Corean’s
participation in the conspiracy was established by:
Testimony of Eric Haar, James Kusick, Tell Cook and Agent
Gromer that a conspiracy existed between [Corean], Tory Tiegen
and others of July 13, 2004. . . . Shortly after Tiegen and
Kindall arrived at [Corean’s] home, [Corean] was clearly aware
that Klug had been kidnapped by them and was being held
against his will. [Corean] knew that Troy Klug was bound and
gagged in a tool box at her residence. [Corean] knowingly
joined, participated, and perpetuated the kidnapping by
providing her residence as a sanctuary for their use while Klug
remained on her property. [Corean] adopted the purposes and
objects of the conspiracy by knowingly engaging in actions which
furthered the object and purpose of the conspiracy.
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We also observe that DeJong testified that Corean knew that Klug was bound and
gagged inside the tool box. And, despite DeJong’s pleas to call the police, Corean
refused, telling DeJong that “the cops [would] get them”; and later, that they needed
to establish an alibi. This evidence was sufficient to establish Corean’s
participation in the conspiracy.
[¶36.] The circuit court also admitted the letters under the residual hearsay
exception. That exception provides in part:
A statement not specifically covered by any of §§ 19-16-30 to 19-
16-34, inclusive, but having equivalent circumstantial
guarantees of trustworthiness, is not excluded by § 19-16-4 if the
declarant is unavailable as a witness and if the court determines
that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it
is offered than any other evidence which the proponent
can procure through reasonable efforts; and
(3) The general purposes of these rules and the interests of
justice will best be served by admission of the statement
into evidence.
SDCL 19-16-35 (Rule 804(b)(6)). “The primary requirement of SDCL 19-16-35
[(Rule 804(b)(6))] is that the declarant be unavailable to testify at trial.” State v.
Davi, 504 N.W.2d 844, 849 (S.D. 1993). In addition to the other statutory
requirements, and to establish that the statements bear the appropriate guarantee
of trustworthiness, a circuit court should consider (1) the written or oral nature of
the evidence, (2) the character of the statements, (3) the relationship between the
declarant and the witness, (4) the declarant’s motivation, and (5) the circumstances
under which the statements were made. Id.-19-
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[¶37.] Corean contends that trustworthiness was not established. In
admitting the letters, however, the circuit court applied the required factors,
finding:
Having found Mr. Tiegen to be unavailable, I find that the
information, the statements in the letters have circumstantial
guarantees of trustworthiness; these are statements between co-
conspirators; between friends, as a matter of fact. I also find the
evidence, the hearsay goes to evidence of a material fact. I also
find that it’s more probative than any other available evidence,
obviously, if Mr. Tiegen being unavailable, his statement can
come in, but these letters were sent back and forth between
prisoners, between Mr. Tiegen and Ms. Kindall and Mr. Tiegen
and Tell Cook. I also find that the general purpose of the
hearsay rule and the interest of justice would be served by their
admissions.
The court further found that the statements and letters “were trying to keep the
conspiracy going and trying to hide it.” The court finally found:
[T]hey were co-conspirators, partners in crime, if you will and
the motivation in making the statements certainly was
continuing the conspiracy and some of that analysis that I made
previously, also sets [sic]; and again, the circumstances under
which the declarant made the statement[s], again, they were
both in jail, they were friends, they are co-conspirators; they
need to be communicating about the things that are very
relevant and material to this case.
Under these circumstances, the circuit court did not abuse its discretion in
admitting the letters as statements of co-conspirators under SDCL 19-16-3(5) (Rule
801(d)(2)) and as residual hearsay under SDCL 19-16-35 (Rule 804(b)(6)). 10
10. Corean argues that the letters are not relevant. We disagree. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” SDCL 19-12-1 (Rule 401). Here, the
letters were relevant because they established elements of the underlying
criminal offenses of kidnapping and first-degree murder, elements that the
(continued . . .)
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III. Jury Instructions
[¶38.] Corean objected to several instructions. 11 Instructions are sufficient
when, viewed as a whole, they correctly state the law and inform the jury. State v.
Moss, 2008 S.D. 64, ¶ 23, 754 N.W.2d 626, 634. “A trial court has discretion in the
wording and arrangement of its jury instructions, and therefore we generally review
a trial court’s decision to grant or deny a particular instruction under the abuse of
discretion standard.” State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125. To
constitute reversible error, the instructions must not only be erroneous but also
prejudicial. Id.[¶39.] Corean objected to an instruction on admissions, arguing that none of
her out-of-court statements rose “to the level of an admission.” The circuit court
overruled Corean’s objection, noting her presence at the scene and her conversations
concealing that Klug was being held against his will. The court ruled that the jury
should decide “whether or not any of these statements were admissions, [and]
whether the statement [was] true in whole or in part.”
________________________
(. . . continued)
State was required to prove to convict Corean of aiding and abetting
aggravated kidnapping and accessory to murder.
11. Corean also makes a general objection to the instructions as a whole, arguing
that they were incorrect, misleading, confusing, and prejudicial. Because
Corean does not identify how the instructions were incorrect, misleading or
confusing as a whole, and because she cites no authority on this issue, we
decline to address her general objection. See State v. Pellegrino, 1998 S.D. 39,
¶ 22, 577 N.W.2d 590, 599 (providing that the failure to cite supporting
authority on appeal is a violation of SDCL 15-26A-60(6) and the issue is
thereby waived).
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[¶40.] “[A] criminal admission is ‘avowal of a fact or of circumstances from
which guilt may be inferred[.]’ Admissions are ‘the words or acts of a party-
opponent, or of his predecessor or representative, offered as evidence against him.’”
State v. Sabers, 442 N.W.2d 259, 265 (S.D. 1989) (quoting State v. Stuck, 434
N.W.2d 43, 54 (S.D. 1988)). Therefore, an admission may include inferences from
demeanor, conduct, and acts of a defendant.
[¶41.] Here, a jury could have inferred guilt from Corean’s acts and
statements. Kusick testified that Corean knew that Klug was being held in her
garage, but she did not do anything to help him. Further, DeJong testified that she
told Corean more than once that they should try to help Klug, but Corean refused,
concealing the kidnapping and indicating that the parties should establish an alibi.
The jury could have inferred guilt from these acts and statements because they
evidenced Corean’s knowledge and intent to provide a sanctuary for Tiegen to
restrain Klug. The circuit court did not err in giving an instruction on admissions.
[¶42.] Corean also objected to the court’s instruction on accomplices. That
instruction provided in part:
To render a person an accomplice, the person must in some
manner knowingly and with criminal intent have aided and
abetted or have advised and encouraged the commission of the
criminal act charged. . . . Whether or not any witness in this
case was an accomplice as defined in these instructions is for the
jury to determine from all the evidence in this case. However,
you are instructed that as a mater [sic] of law James Kusick and
Cynthia Kindall are to be considered accomplices.
(Emphasis added.) Corean argues that the circuit court should have instructed that
DeJong, Haar, and Cook were also accomplices as a matter of law. Corean argues
prejudice because such an instruction would have required that these additional
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witnesses’ testimony be corroborated. See SDCL 23A-22-8 (“A conviction cannot be
had upon the testimony of an accomplice unless it is corroborated by other evidence
which tends to connect the defendant with the commission of the offense. The
corroboration is not sufficient if it merely shows the commission of the offense, or
the circumstances thereof.”). The circuit court declined Corean’s request, ruling
that it was a fact question for the jury whether the “people other than Mr. Kusick
and Ms. Kindall” were accomplices.
[¶43.] “Whether an individual is an accomplice may be a question of law for
the court or a question of fact for the jury, depending on the state of the evidence.”
State v. Busack, 532 N.W.2d 413, 415 (S.D. 1995). “If the facts as to a witness’
alleged participation in the crime are disputed or susceptible to different inferences,
the question is one of fact for the jury; otherwise, it is a question of law.” Id.[¶44.] “An accomplice is one who is liable to prosecution for the identical
offense charged against the defendant on trial.” Id. at 415-16. An accomplice must
be “legally accountable” for the underlying offense. Id. at 416. In this case, DeJong,
Haar, and Cook were neither convicted of nor pleaded guilty to the identical
offenses charged against Corean. Both Haar and DeJong entered into plea
agreements under which they were not charged and were given immunity, and Cook
pleaded to misdemeanor misprison of a felony. Additionally, Corean has not
identified other evidence suggesting that DeJong, Haar, or Cook were legally
accountable for the underlying offenses as a matter of law. Rather, their level of
participation in the events surrounding the murder and kidnapping was susceptible
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to different factual inferences. Consequently, the circuit court correctly concluded
that it was a jury question whether those individuals were accomplices.
[¶45.] Corean has also failed to establish prejudice. The jury was instructed
that “[w]hether or not any witness in this case was an accomplice as defined in
these instructions is for the jury to determine from all the evidence in this case.”
The jury was also instructed on the need for corroboration of accomplice testimony.
We must infer that the jury followed those instructions in determining the
corroboration necessary to support the verdict. See generally State v.
Olhausen, 1998 S.D. 120, ¶ 11, 587 N.W.2d 715, 718. The circuit court did not
prejudicially err in declining to instruct that DeJong, Haar, and Cook were
accomplices as a matter of law.
[¶46.] The court’s instruction on accessory provided:
In the crime of being an accessory to a crime the defendant must
render assistance to another with the specific intent to hinder,
delay or prevent the discovery, detention, apprehension,
prosecution, conviction or punishment of the other for the
commission of a crime. Unless the defendant acted with that
specific intent, the crime was not committed.
Over Corean’s objection, the circuit court removed the last sentence of the South
Dakota pattern jury instruction on accessories, which would have also told the jury
that “there must exist a union or joint operation of acts or conduct and a certain
specific intent.” The circuit court removed this language, ruling that it was
surplusage and confusing.
[¶47.] To be an accessory, Corean need only have rendered assistance “with
intent to hinder, delay, or prevent the discovery, detection, apprehension,
prosecution, conviction, or punishment of another for the commission of a felony.”
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SDCL 22-3-5. “Rendering assistance” includes “[o]bstruct[ing] anyone by . . .
deception in the performance of any act which might aid in the discovery, detection,
apprehension, prosecution, conviction, or punishment of the other person[.]” SDCL
22-3-5(4).
[¶48.] The court’s instruction provided that the crime required both
rendering assistance to another and specific intent to “hinder, delay, or prevent the
discovery, detection, apprehension, prosecution, conviction or punishment” of
another. Therefore, Corean’s requested language on joint operation of acts or
conduct and specific intent was duplicative of the court’s instruction. Instructions
that are duplicative or surplusage do not warrant reversal of a jury verdict. See
State v. McVay, 2000 S.D. 72, ¶ 18, 612 N.W.2d 572, 576; Cody v. Edward D. Jones
& Co., 502 N.W.2d 558, 564 (S.D. 1993). We fail to see, and Corean fails to
articulate, how the circuit court’s reasoning for striking the last sentence was in
error.
[¶49.] Corean objected to the court’s instruction on aiding and abetting
kidnapping. “Any person who, with the intent to promote or facilitate the
commission of a crime, aids, abets, or advises another person in planning or
committing the crime, is legally accountable, as a principal to the crime.” SDCL 22-
3-3. The court’s instruction provided in relevant part:
One of the elements of the crime of kidnapping as charged in
Count 3 of the indictment is that the defendant’s purpose was to
facilitate the commission of a felony.
The crimes of murder, aggravated assault, possession of a
controlled substance and maintenance of a place for the use of
controlled substances are all felony offenses.
***
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A person commits the offense of maintaining a place for the use
of controlled substances when the person knowingly keeps or
maintains any place which is resorted to by persons using
controlled drugs and substances for the purpose of using such
substances or which is used for the keeping or selling of a
controlled drug.
Corean objected to the last paragraph of the instruction that included possession of
a controlled substance and maintaining a place for the use of controlled substances
as underlying felonies. The circuit court overruled the objection, finding evidence
that all four felonies could have been the purpose for the kidnapping and murder.
[¶50.] On appeal, Corean argues that Tiegen did not commit the kidnapping
to maintain a place for the use of controlled substances.12 A circuit court should
instruct the jury on issues “supported by competent evidence in the record[.]”
Johnson v. Armfield, 2003 S.D. 134, ¶ 7, 672 N.W.2d 478, 481. Whether the
evidence was sufficient to support an instruction is viewed “in the light most
favorable to upholding the verdict.” Id.[¶51.] In this case there was sufficient evidence that the kidnapping took
place for the purpose of keeping or facilitating Tiegen and Kindall’s drug activities
at Kindall’s and Corean’s houses. Regarding Kindall’s house, there is no dispute
that both Tiegen and Kindall were in the illicit drug business from Kindall’s house
in Rapid City. Tiegen testified that he had been staying at Kindall’s house for
about a week, and Klug came over to Kindall’s house on Monday to purchase
methamphetamine. Kindall admitted having sold drugs to Klug, and Klug had
12. Although Corean objected to the court’s instruction that included the felony of
possession of a controlled substance, Corean has not objected to that portion
of the instruction on appeal.
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owed her money for drugs for about two to three years. Beebe testified that Kindall
was a drug supplier and had supplied Beebe with methamphetamine. Beebe
further testified that Klug had sold drugs for Kindall and Kindall was Klug’s
supplier. Kusick testified that he had also purchased drugs at Kindall’s house and
Tiegen was supplying methamphetamine to both Kusick and Corean. Considering
Klug’s lengthy drug debt to Kindall, together with Tiegen’s statement that Klug had
become “a rat, a snitch,” the jury could have inferred that the murder and
kidnapping occurred to foster and maintain Tiegen and Kindall’s drug business at
Kindall’s house.
[¶52.] There was also evidence that Tiegen, Kindall, Corean and others were
using Corean’s house as a place to use illegal drugs. DeJong testified that before
Tuesday, July 13, she had seen Tiegen at Corean’s house using drugs. DeJong also
testified that Corean’s house was the place where “quite a few” people went to use
illegal drugs. Considering all the evidence, a jury could have inferred that the
kidnapping occurred because Klug was a “snitch,” and Tiegen and Kindall wanted
to perpetuate the use of Corean’s house for the sale and use of controlled
substances. We conclude that the circuit court did not abuse its discretion in
submitting an instruction that included maintaining a drug premises as a purpose
for the kidnapping.
IV. Whether there was sufficient evidence to sustain Corean’s convictions
[¶53.] Corean claims that there was “no evidence introduced at trial” to
sustain her convictions. Her claim is viewed in the light most favorable to the
verdict. State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342. The question is
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whether “there is evidence in the record which, if believed by the fact finder, is
sufficient to sustain a finding of guilt beyond a reasonable doubt.” Id. This Court
will not resolve conflicts in the evidence, assess the credibility of witnesses, or
reevaluate the weight of the evidence. Id. “If the evidence including circumstantial
evidence and reasonable inferences drawn therefrom sustain[s] a reasonable theory
of guilt, a guilty verdict will not be set aside.” Id.[¶54.] Contrary to Corean’s claim, there was sufficient evidence that she
aided and abetted Klug’s kidnapping. Kusick testified that he talked to Corean at
least a “couple of times” about Klug being held in the tool box. DeJong testified that
(1) Corean told DeJong on Tuesday evening “that there was somebody being held in
the shed,” (2) Corean told DeJong not to call the police, and (3) Corean talked to
DeJong about establishing an alibi. Finally, Haar testified that he, Corean, and
DeJong discussed “the body in the box” on Tuesday evening and reached an
agreement “not to say anything about it.” Ultimately, Kusick, Haar, and DeJong all
implicated Corean. As the circuit court correctly observed, the jury could have
inferred that Corean aided and abetted Tiegen by allowing her house to be used as a
sanctuary to facilitate the kidnapping.
[¶55.] There was also sufficient evidence to sustain Corean’s accessory to
murder conviction. DCI Agent Gromer testified that when the police interviewed
Corean in September 2004, Corean lied regarding the type of vehicle that Tiegen
was driving on Tuesday morning. She informed the police that Tiegen was driving a
red pickup, as opposed to Kindall’s black Nissan that was used to transport Klug.
Agent Gromer testified:
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[W]e got to talking again about Thursday or excuse me, Tuesday
morning when Tiegen had came [sic] early in the morning and at
that point in time she said that [Tiegen] was driving a red
pickup. And said that she remembered that because she walked
by it as she walked out of the house that morning to go to work.
When Agent Gromer was asked if Corean’s statement surprised him, he replied, “It
did because earlier she had said that he was driving the black Nissan.” Agent
Gromer testified that he then asked Corean about this discrepancy, and Corean told
him that “she was sure that it was a red and silver pickup.” Agent Gromer further
testified that the day after this interview, he stopped at Corean’s work, showed her
a photograph of Tiegen’s pickup, and Corean “identified the pickup as the one that
was at her house.” The jury could have concluded that this was deception by Corean
intended to assist Tiegen by obstructing the authorities’ investigation. See supra ¶
47 (setting forth the elements of an accessory under SDCL 22-3-5 and 22-3-5(4)).
[¶56.] Corean also argues that the evidence was insufficient because there
was no corroborative evidence of accomplice testimony. “[T]here is[, however,] no
requirement that every material fact testified to by [an] accomplice be confirmed by
corroborative evidence.” State v. Smithers, 2003 S.D. 128, ¶ 33, 670 N.W.2d 896,
903. “The rule is satisfied if such evidence in some substantial degree (1) tends to
affirm the truth of the testimony of the accomplice, and (2) tends to establish the
guilt of the defendant. Circumstantial evidence may be sufficient to corroborate the
testimony of an accomplice[.]” State v. Giuliano, 270 N.W.2d 33, 39 (S.D. 1978).
“Where such evidence of corroboration appears, its weight, credibility, and
sufficiency is for the jury.” Id.-29-
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[¶57.] We initially observe that Corean’s own testimony corroborated other
witnesses. Corean admitted that Tiegen was at her house on Tuesday morning and
that she left work to check if Tiegen had left and to lock the garage. Corean also
admitted that Tiegen was a good friend and that he had been providing her with
methamphetamine. She further admitted that Tiegen was at her house with the
black Nissan. Nevertheless, Agent Gromer indicated that Corean lied or covered-up
her participation. Corean declined to tell him anything about her actions or seeing
Tiegen. Corean further confirmed that DeJong was a good friend of hers, and that
it was possible that several of the witnesses, including DeJong, were at her house
on Wednesday. That would have placed those witnesses in a position from which
they could have made the observations they related at trial.
[¶58.] Additionally, the kidnapping and murder were clearly corroborated.
And, with respect to Corean’s defense regarding untimely knowledge of the
kidnapping, the circuit court found that “[t]he [impeaching] testimony of James
Kusick, Eric Haar and Abigail DeJong regarding the time of death [was]
corroborated by the testimony of Dr. Neal Haskell, an entomologist, who found that
Troy Klug’s death occurred on Wednesday, July 14, 2004, at the earliest.”
[¶59.] Finally, as previously noted, it is significant that Kusick, Haar, and
DeJong have never been convicted of the offenses for which Corean was tried, and
they were not accomplices as a matter of law. Therefore, it was for the jury to
determine whether their testimony required corroboration. See supra ¶ 45.
Considering all the evidence, together with the fact that it was the jury’s
prerogative to determine whether corroboration was even necessary, there was
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sufficient evidence for the jury to have convicted Corean. See Olhausen, 1998 S.D.
120, ¶ 11, 587 N.W.2d at 718 (“The testimony of the accomplice need not be
validated by evidence adequate to carry a conviction.”). As indicated by the circuit
court at sentencing, “I sat through the trial and find more than sufficient credible
evidence to support both verdicts.” The evidence and the natural inferences drawn
therefrom sustain a reasonable theory of guilt. See Carter, 2009 S.D. 65, ¶ 44, 771
N.W.2d at 342.
V. Whether Corean’s sentence constitutes cruel and unusual punishment
[¶60.] Corean argues that her mandatory life sentence for aiding and abetting
aggravated kidnapping is cruel and unusual punishment because it is grossly
disproportionate to the crime and to the other parties’ sentences. She also asserts
gross disproportionality because she alleges the sentence was more than necessary
to protect the public and provide for rehabilitation, and that the court failed to
consider mitigating circumstances.
[¶61.] But aiding and abetting aggravated kidnapping is a Class A felony. As
indicated by the circuit court in pronouncing her sentence, “[t]here is no discretion;
there is no leniency that can be given under the law. . . . The law is clear, it’s a
Class A felony, life imprisonment and no possibility of parole under that sentence.”
See SDCL 22-6-1(1) (“A lesser sentence than death or life imprisonment may not be
given for a Class A.”).
[¶62.] We have previously acknowledged that no downward departure is
permitted under mandatory sentencing even “if mitigating circumstances exist[ed].”
See State v. Smiley, 2004 S.D. 119, ¶ 3, 689 N.W.2d 427, 429. This Court has
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rejected the arguments that a mandatory life sentence violates the Eighth
Amendment and that a sentencing court should retain discretion to consider
mitigating factors to allow for a sentence less than life. See Owens v. Russell, 2007
S.D. 3, ¶ 29, 726 N.W.2d 610, 620. Notwithstanding this inability to consider
mitigating factors, “[t]here is no constitutional basis” for Corean’s arguments: they
“should be addressed to the [L]egislature.” See id. See also Harmelin v. Michigan,
501 U.S. 957, 995, 111 S.Ct. 2680, 2701, 115 L.Ed.2d 836 (1991) (stating that the
defendant’s “‘required mitigation’ claim, like his proportionality claim, does not find
support in our death penalty jurisprudence”); Steichen v. Weber, 2009 S.D. 4, ¶ 30,
760 N.W.2d 381, 394 (stating that, when asked to review the proportionality of a
sentence, this Court gives the “utmost deference to the Legislature”).
[¶63.] We believe the same principles apply to a mandatory life sentence for
kidnapping. “The Legislature sanctioned life imprisonment for particularly
egregious conduct such as kidnapping[.]” State v. Guthmiller, 2003 S.D. 83, ¶ 45,
667 N.W.2d 295, 310. In upholding a life sentence for kidnapping, Iowa has
recognized that “[k]idnapping is one of the most serious of all crimes. By its very
nature it involves violence or forcible restraint.” Lamphere v. State, 348 N.W.2d
212, 220 (Iowa 1984) (citing In re Maston, 33 Cal.App.3d 559, 563, 109 Cal.Rptr.
164, 167 (1973)). Thus, “[t]he severity of punishment . . . can be explained by the
degree to which the legislature has deplored this [ ] crime.” Id. The Eighth Circuit
has found that a legislatively mandated life sentence for kidnapping is severe, but it
is not “so disproportionate to the crime as to be unconstitutional.” Hatter v. Iowa
Men’s Reformatory, 932 F.2d 701, 703 (8thCir. 1991). Even more to the point, the
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Eighth Circuit has found that a legislatively mandated life sentence for aiding and
abetting kidnapping is not grossly disproportionate. See Simmons v. State of
Iowa, 28 F.3d 1478, 1483 (8thCir. 1994) (concluding “that the Iowa mandatory
sentence of life imprisonment without parole is not grossly disproportionate to
[defendant’s] crime of aiding and abetting the restraint and torture of her seven-
year-old child”). Similarly, we have concluded that a mandatory life sentence for
conspiracy to commit a murder that never came to fruition was not cruel and
unusual punishment. See State v. Kaiser, 526 N.W.2d 722, 726 (S.D. 1995)
(analyzing the issue under the shock-the-conscience test).
[¶64.] The Supreme Court has noted that, outside the context of capital cases,
the proportionality principle only comes into play in the extreme example, if for
example a legislature made overtime parking a felony punishable by life
imprisonment. Ewing v. California, 538 U.S. 11, 21, 123 S.Ct. 1179, 1185, 155
L.Ed.2d 108 (2003). Corean’s case is not such an extreme example. Considering the
torture and depravity involved in this case, Corean’s active participation in
facilitating the crime, and the legislatively mandated sentence for this offense, we
must defer to the Legislature and reject Corean’s gross disproportionality
argument.
[¶65.] Affirmed.
[¶66.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,
and SEVERSON, Justices, concur.
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