State v. Quinones Rodriguez , 2020 S.D. 68 ( 2020 )

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2020 S.D. 68IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOSE ANIBAL QUINONES RODRIGUEZ, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
DAY COUNTY, SOUTH DAKOTA
****
THE HONORABLE RICHARD A. SOMMERS
Judge
****
JASON R. RAVNSBORG
Attorney General
PATRICIA ARCHER
CHELSEA WENZEL
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
THOMAS J. COGLEY of
Cogley Law Office, Prof. LLC
Aberdeen, South Dakota
JOSHUA K. FINER of
Richardson, Wyly, Wise,
Sauck & Hieb, LLP
Aberdeen, South Dakota Attorneys for defendant and
appellant.
****
ARGUED
APRIL 21, 2020
OPINION FILED 12/09/20
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KERN, Justice
[¶1.] Following a bench trial, Jose Anibal Quinones Rodriguez (Rodriguez)
was convicted of first-degree murder and other offenses in connection with the
slaying of Tawny Rockwood (Rockwood) in February 2018. He appeals his
convictions, alleging that the circuit court erred by denying his motion to suppress;
refusing to declare certain witnesses adverse; violating his Sixth Amendment
rights; and finding him guilty based on insufficient evidence. He also alleges
cumulative error based on the above claims. We affirm.
Facts and Procedural History
[¶2.] On Friday, February 9, 2018, at 1:30 a.m., a newspaper delivery man
was traveling east along Highway 12 near Andover, South Dakota, 1 when he
noticed that an apartment building was on fire. He called 911 for aid. By the time
law enforcement arrived at the scene, flames had consumed one side of the
apartment building. The inferno was concentrated in Tawny Rockwood’s upstairs
apartment. Firefighters were unable to immediately locate Rockwood at the scene
and began an investigation into her whereabouts.
[¶3.] Day County Deputy Sheriff Jerred Schreur responded to the 911 call.
He was familiar with the apartment quad-complex, as well as its sole occupant, 2
and remembered that a Dodge pickup truck was often outside the complex in the
days leading up to the fire. Typically, on his commute to work, he would observe
1. Andover is a small town in Day County, South Dakota, located about thirty
miles east of Aberdeen.
2. At the time of the call, Depury Sheriff Schreur knew that Tawny Rockwood
was the only tenant living in the building.
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the truck outside of the building, but he was unsure how long it normally stayed
there. He considered the vehicle suspicious because it was unfamiliar to him and it
appeared to have been spray painted. For these reasons, on February 7, he
recorded the license plate number in order to determine the identity of the owner.
On the morning of February 9, shortly after law enforcement officers were alerted
about the fire, Deputy Schreur discovered that the vehicle was owned by Rodriguez.
He attempted to contact Rodriguez to determine whether he had information
regarding Rockwood’s whereabouts, but the call went to Rodriguez’s voicemail.
[¶4.] Concerned about Rockwood, Deputy Schreur requested the assistance
of other law enforcement agencies in locating Rockwood and Rodriguez. Aberdeen
Police Department Detectives Kyle Fadness and Jeff Neal visited the residence of
Agnes Quinones-Rios (Agnes), Rodriguez’s daughter, at about 8:45 a.m. on February
9. As they drove up to Agnes’s house, the detectives observed a male, later
identified as Rodriguez, entering it. They also saw that a spray-painted Dodge
pickup was parked near the house. Hoping that Rodriguez would come back
outside, the detectives parked across the street and waited. At some point,
Rodriguez left the house and got into the driver’s seat of a white Jeep with tinted
windows. When he did not drive away, Detective Fadness approached the Jeep and
asked Rodriguez if he would answer some questions. Rodriguez agreed and followed
Detective Fadness back to his car to talk, rather than stand outside because the
weather was cold. The detectives did not advise Rodriguez of his Miranda rights,
restrain him, or place him under arrest.
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[¶5.] Once inside the car, Detective Fadness tried to tell Rodriguez about
the fire, but it quickly became clear that English was not his native language. To
assist with communication, Detective Fadness called Marie DeGroot, an Aberdeen
City employee who spoke Spanish, and placed the call on speakerphone. 3
[¶6.] During the discussion, Rodriguez stated that he and Rockwood were in
a relationship and that he had driven to her residence on Wednesday, February 7,
and spent the night there. According to Rodriguez, he remained at her apartment
for most of the next day, February 8, before leaving to return to Aberdeen at around
8:00 p.m. Rodriguez claimed that about thirty minutes later, he arrived at his
daughter’s house in Aberdeen, where he took a shower. Then he went to his brother
Wilberto’s house, borrowed a white Jeep, and filled it up with gas at the Holiday gas
station. He explained that he went on several errands in the Jeep that night,
including driving it to purchase beer and to Walmart to buy a space heater for
warmth so that he could sleep in the Jeep. At some point, Rodriguez indicated that
he also went to a friend’s house, but the interpreter had a difficult time
understanding the name of the friend. 4
[¶7.] The friend, Gaver Glover (Glover), had been with Rodriguez and Agnes
on several occasions during the evening of February 8 and early morning hours of
3. The conversation was recorded and ultimately entered into evidence at
Rodriguez’s trial.
4. At first, DeGroot believed Rodriguez was saying “Pete,” but later, when
Rodriguez spelled the name, he indicated his friend’s name was K-I-T. The
officers later determined that Kit was Glover, who went by the nickname
“Kid,” which Rodriguez pronounced “Keith.”
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February 9. Glover previously had a romantic relationship with Agnes and talked
to her often.
[¶8.] At the same time that Detective Fadness was interviewing Rodriguez
in their car, officers arrived to question Agnes. She informed them that Rockwood
was not in her house and permitted them to enter to look for her. While the officers
were walking through the premises, they observed a red gas can in a shed behind
the house. Officers did not need to enter the shed to see the can because the door to
the shed was open.
[¶9.] When Detective Fadness asked Rodriguez about the gas can, he
indicated that it was his brother’s and that Wilberto had put it in the shed. He told
the detective that he also owned a gas can, stating that his was in the back of his
Dodge truck. Rodriguez agreed to surrender his clothes and cell phone to law
enforcement. However, he informed the detective that he had broken his phone the
day before by inadvertently dropping it and running over it with his pickup. Once
they retrieved these items from Rodriguez, they concluded the interview.
[¶10.] Three agents from the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) arrived in Aberdeen that day (February 9) to work on an
unrelated case and also interviewed Rodriguez about the fire and Rockwood’s
whereabouts. Rodriguez was working on the Jeep outside of Agnes’s house when
they arrived. He consented to speak with them and followed the ATF agents into
their suburban. At the outset of the conversation, the ATF agents informed
Rodriguez that he was not under arrest and was free to leave.
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[¶11.] Much of the interview was conducted in Spanish. The agents did not
procure a foreign language expert to assist them in interviewing Rodriguez; instead,
they spoke with him in Spanish and English. 5 Rodriguez repeated the information
that he had told Detective Fadness earlier that day.
[¶12.] Meanwhile, various state and federal agencies were investigating the
apartment fire. Because they considered its origin to be suspicious, officers
obtained a search warrant for the premises, and a search began shortly after noon
on February 9. The apartment and all of its contents were heavily damaged by the
fire. After hours of searching through the debris, officers found Rockwood’s remains
in what used to be the living room area. Her body was severely burned, but officers
were able to observe a bullet wound to her head. Dr. Kenneth Snell, a pathologist
from Sioux Falls, later conducted an autopsy, which revealed that Rockwood
suffered two bullet wounds to her skull, one of which was the cause of her death.
During his examination, Dr. Snell removed an intact bullet from Rockwood’s hair.
[¶13.] Several days later, an Aberdeen police officer was searching a
dumpster in an alley to assist with an unrelated case when he opened a garbage bag
and found a beer carton with a black handgun inside. The officer seized the gun
and submitted it to the State laboratory in Pierre for analysis. The State’s ballistics
expert, Frans Martiz, examined the gun. The gun, which was a Hi-Point model JCP
Smith & Wesson .40 caliber, was damaged but the serial number remained intact.
Martiz repaired the gun and fired a test bullet for purposes of comparison to the
5. One of the agents, Special Agent Elizabeth McElroy, had some familiarity
with Spanish and conducted most of the interview. The others knew some
Spanish, but not enough to be considered proficient.
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bullet found in Rockwood’s hair. After conducting a microscopic comparison of the
rifling marks on the two bullets, Martiz conclusively determined that the bullet
found in Rockwood’s hair was fired by the gun found in the dumpster.
[¶14.] In their search to discover the identity of the gun owner, law
enforcement contacted EZ Pawn Shop in Aberdeen and requested that it search its
records regarding the gun. Angela Johnson (Johnson), the shop manager, located a
record revealing that Jamie Lynn Farmer (Farmer) purchased the gun in question
for $200 in October 2017. 6 Johnson informed police that she knew Farmer because
Johnson managed a rental property that Farmer occupied. She provided law
enforcement with a rental property agreement for the unit and explained that
Rodriguez lived in the apartment with Farmer.
[¶15.] Officers obtained a search warrant for Wilberto’s Jeep and Rodriguez’s
Dodge pickup and recovered a nylon gun holster, butane lighters, a gas can from the
Dodge pickup and a propane torch from the Jeep. Officers also reviewed several
surveillance videos taken from the Holiday gas station and the Walmart in
Aberdeen to establish Rodriguez’s whereabouts throughout the night of February 8
and into the morning hours of February 9. They discovered that Rodriguez went to
the Holiday gas station at 9:04 p.m. on February 8. While there, he walked into the
view of the camera, but did not purchase anything. Later that night, at 12:48 a.m.,
a white Jeep pulled into the gas station, and Rodriguez entered the gas station. A
surveillance video from Walmart showed that he was in Walmart between 1:18 a.m.
6. Before EZ Pawn will sell a firearm, it requires the purchaser to produce a
state issued ID and pass a background check.
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and 1:32 a.m. A time stamped video from the Holiday gas station depicted
Rodriguez with another man, later determined to be Glover, buying beer at 1:52
a.m.
[¶16.] During their interviews with law enforcement, both Agnes and Glover
made statements regarding Rodriguez’s whereabouts on the night of the murder.
Agnes was interviewed by Federal Agent Kevin Wiese the morning of February 9.
She stated that Rodriguez called her on Thursday evening (February 8) to talk to
her about Rodriguez’s vehicle that she had sold to Glover earlier that day. She
explained that Rodriguez used Rockwood’s cell phone to initiate the call and
indicated that she could hear Rockwood crying in the background. Later that
evening, Rodriguez came to her house, threw his clothes in the washing machine,
showered, and changed clothes. She described his demeanor while at the house as
“crazy.” Agnes stated that when he came back to her house the next day, Rodriguez
told her that the police were looking for him.
[¶17.] Glover spoke with police several times during the investigation and
admitted to lying early on in order to cover for Rodriguez. Eventually, Glover
entered into a plea agreement, which required him to testify truthfully against
Rodriguez at trial in exchange for dismissal of a felony charge. 7 At trial, Glover
testified that he was with Agnes earlier in the evening of February 8, when
Rodriguez called him using Rockwood’s phone to discuss a vehicle Glover had
7. Glover was charged with accessory to homicide in violation of SDCL 22-3-5
for his actions subsequent to the murder. In exchange for his testimony, the
State permitted him to plead guilty to misprision of a felony in violation of
SDCL 22-11-12. It also agreed to forgo additional charges.
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purchased from Rodriguez through Agnes. Glover could hear Rodriguez arguing
with a woman, whom Agnes said was Rockwood, in the background. The call ended,
and Glover called the number back at 7:51 p.m., and both Glover and Agnes spoke
with Rodriguez. During this time, Rockwood’s phone made numerous calls in rapid
succession to Glover, Agnes, and Wilberto. 8
[¶18.] Glover was also at Agnes’s house when Rodriguez arrived there around
8:30 p.m. Glover agreed to give Rodriguez an additional $60 for the car. He
testified that while he went to get the cash, he believed Rodriguez and Wilberto left
to go somewhere together. Later in the evening, Rodriguez admitted to “fuck[ing]
up” that evening. At Rodriguez’s request, Glover accompanied him to the Holiday
gas station to buy beer. Glover testified that Rodriguez drove double the speed limit
on slippery road conditions so he could get there before they stopped selling alcohol
at 2:00 a.m.
8. The State’s Exhibits numbered 39 through 42 show the following calls:
From 7:54 to 7:56 p.m., Rockwood’s phone made six calls to Wilberto’s
phone and then ceased making calls. (Exhibit 42).
From 7:51 to 7:57 p.m., Rockwood’s phone made two calls to Agnes,
received three calls from her, and then ceased making calls. (Exhibit
41).
From 7:48 to 7:51 p.m., Rockwood’s phone made one call to Glover,
received three calls from him, and then ceased making calls. (Exhibit
40).
Rockwood’s phone made no calls to Rodriguez’s phone during this
timeframe. Rodriguez’s last call to Rockwood’s phone was at 5:54 p.m.
(Exhibit 39).
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[¶19.] After purchasing beer from the store just before 2:00 a.m., they went
back to Glover’s apartment, where Rodriguez asked Glover to download a police
scanner application for him. Earlier in the evening, Rodriguez was listening to
Glover’s scanner and heard his own phone number being transmitted through the
radio. Because Rodriguez did not have a phone, Glover loaned him a spare to allow
him to listen to the scanner. At some point, Rodriguez also gave Glover a black
pistol and some bullets to keep for him until Wilberto could come and pick them up
the next day. Glover kept the gun overnight, testifying that he returned it to
Rodriguez in the morning.
[¶20.] Eventually, Rodriguez was indicted on charges of first-degree murder,
first-degree felony murder, second-degree murder, first-degree arson, first-degree
burglary, commission of a felony while armed with a firearm, and aggravated
assault. The State dismissed the first-degree felony murder charge prior to trial.
Rodriguez waived his right to a jury trial.
[¶21.] The case was tried to the court from May 13-28, 2019. During its case-
in-chief, the State called thirty-seven witnesses to the stand. In addition to the
evidence summarized above, the State introduced testimony tying Rodriguez to the
gun and circumstantial evidence regarding his and Wilberto’s whereabouts after the
murder.
[¶22.] Anthony Olsen, Rockwood’s former boyfriend, testified on behalf of the
State that on a prior occasion, Rodriguez had brandished a Hi-Point pistol at him.
And Highway Patrol Trooper John Berndt indicated that Rodriguez had a magazine
clip loaded with .40 caliber bullets on him during a traffic stop in 2017.
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[¶23.] Wilberto also testified on behalf of the State, that he saw Rodriguez on
the night of the murder at Agnes’s house, where Rodriguez asked Wilberto for
money. Wilberto insisted that he went home at 11:00 p.m. and did not see
Rodriguez again that night. He also testified that he was in possession of his cell
phone on the evening of February 8 through February 9. However, FBI Special
Agent Jay Berni, a cell phone data analyst, testified that he linked the cell phone
data from Wilberto’s phone to multiple cell towers east of Aberdeen throughout the
evening. The data trail appeared to show Wilberto’s phone traveling from Aberdeen
toward the direction of Andover and back again. Agent Berni also reviewed data
from Rodriguez’s cell phone. He testified that the last activity on Rodriguez’s phone
occurred at 6:03 p.m. on the evening of the murder, that a call was placed to a
number later determined to be Glover’s, and that the phone was linked to a tower
east of Aberdeen in the direction of Andover.
[¶24.] The State called Agnes to the stand, and she testified about details of
her living situation at the time of the incident and explained that her father kept
belongings in her home and came and went as he wished. When the State
attempted to question her about the content of her statements to Agent Weise, she
indicated she could not remember. Although she remembered being interviewed,
she could not recall any information about her father’s whereabouts on February 8
or 9, 2018. Based on her apparent lack of recollection, Rodriguez moved to declare
her unavailable pursuant to SDCL 19-19-804(a)(3). The circuit court denied the
motion as premature. When the State attempted to refresh Agnes’s recollection
with a transcript of her interview with Agent Weise, she claimed that she was on
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drugs at the time and could not remember those days. The State, citing her
consistent inability to remember, requested that the court deem her unavailable.
Having previously sought the same ruling, Rodriguez did not object, and the circuit
court declared her so.
[¶25.] When the State offered the transcript of Agnes’s interview into
evidence, however, Rodriguez did object. He argued that admission of the transcript
constituted a violation of the Confrontation Clause. The court rejected Rodriguez’s
argument because Agnes was present in the courtroom. In so ruling, the court
noted that Agnes was “declared unavailable for purposes of the questions that were
asked earlier regarding the interview” and that Rodriguez was free “to cross-
examine [Agnes] as to anything in the transcript because she is present.” Rodriguez
declined the invitation, claiming that he could not examine an unavailable witness.
Instead, he renewed his objection with respect to the Confrontation Clause issue,
which the circuit court again denied. The court admitted the transcript.
[¶26.] Agent Brandon Neitzert, a DCI agent that had investigated the
transactional history of the gun at EZ Pawn, also testified for the State. As part of
his investigation, he interviewed Rodriguez’s ex-girlfriend, Jamie Farmer. Prior to
trial, the State unsuccessfully attempted to procure Farmer’s attendance at trial
through a material witness warrant. Having failed to locate Farmer, the State
moved the circuit court to declare Farmer unavailable and sought admission of her
statements to Agent Neitzert as statements against interest pursuant to SDCL 19-
19-804(b)(3) in light of her knowledge that Rodriguez was a convicted felon and that
he had possession of the gun after she purchased it.
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[¶27.] Rodriguez again objected on the basis that the testimony violated the
Confrontation Clause and Crawford v. Washington, 541 U.S. 36, 124 S Ct. 1354, 158
L. Ed. 2d 177 (2004). In response, the State requested the opportunity to make a
limited offer of proof so that the court could determine whether the evidence was
admissible. The court permitted the proffer and the following exchange occurred:
Q: Agent Neitzert, is there criminal liability for someone to
purchase a gun for a felon?
A: Yes.
Q: Is there also criminal liability to leave a gun with a prohibited
person?
A: Yes.
Q: Did Ms. Farmer tell you that she knew [Rodriguez] was a
convicted felon?
A: Yes.
Q: Did she tell you that he was present when she purchased the
gun?
A: Yes.
Q: Did she tell you that she did not handle the gun after the
purchase?
A: She did.
Q: Did she also tell you that the gun was left with him?
A: Yes, she did.
Q: Did she tell you that the gun was left with him when she moved
out?
A: Yes.
[¶28.] Following this exchange, the circuit court indicated it would admit the
evidence as statements against interest. Regarding the Confrontation Clause issue,
the court found no Sixth Amendment violation, but told the parties they were free
to brief the issue and that it would reconsider its ruling if persuaded by their
authorities. Ultimately, the State chose not to offer Farmer’s statements to Agent
Neitzert or the recording of her interview with him into evidence.
[¶29.] During his case-in-chief, Rodriguez presented evidence from fourteen
witnesses in support of his alibi and third-party perpetrator defenses. At the
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conclusion of the evidence, the State moved to dismiss the first-degree burglary
charge, and it was struck from the indictment. The court found Rodriguez guilty of
first-degree murder, second-degree murder, arson, commission of a felony while
armed with a firearm, and aggravated assault. It sentenced him to life in prison for
first-degree murder, twenty-five years for arson, twenty-five years for commission of
a felony while armed with a firearm, and fifteen years for aggravated assault, with
all sentences to be served concurrently. The court did not impose a sentence for the
second-degree murder conviction.
[¶30.] Rodriguez appeals, raising five issues for our review:
I. Whether the circuit court erred by denying Rodriguez’s motion
to suppress.
II. Whether the circuit court abused its discretion by declining to
declare Brandon Kroll and Agent Neitzert adverse witnesses.
III. Whether the circuit court violated Rodriguez’s Sixth
Amendment confrontation rights.
IV. Whether the evidence presented at trial was sufficient to
support the convictions.
V. Whether Rodriguez’s due process right to a fair trial was
violated as a result of cumulative errors at his trial.
Analysis and Decision
I. Whether the circuit court erred by denying Rodriguez’s
motion to suppress.
[¶31.] Prior to trial, Rodriguez moved the circuit court to suppress the
statements he made to Detective Fadness and the ATF agents on the basis that his
Fifth Amendment rights and his rights under article VI, § 9 of the South Dakota
Constitution were violated. In his motion, Rodriguez requested a hearing and the
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opportunity to submit a brief thereafter. At the pretrial motion hearing on April 16,
2019, the parties discussed the manner in which the motion should be resolved due
to the fact that Rodriguez had waived his right to a jury trial. The court determined
that it would reserve judgment on the motion to suppress until trial and that after
hearing the relevant evidence, “a proper objection could be made and we could
address it at that time.”
[¶32.] At trial, the State called Detective Fadness to testify regarding his
exchange with Rodriguez in the detective’s car. The State then moved the court to
admit the recording into evidence. When asked whether Rodriguez had any
objections, defense counsel did not present arguments that Rodriguez’s statements
to Detective Fadness should be suppressed. Instead, he replied, “I don’t know that I
can object until I hear it, Your Honor, but if it’s the same one I heard I would not
object.” The court admitted the recording.
[¶33.] When Agent Weise took the stand to testify regarding his interview
with Rodriguez, the State moved the court to admit the second recording into
evidence. Again, the defense did not object at the time the evidence was offered,
and the court admitted the evidence. Following Agent Weise’s testimony, Rodriguez
moved to suppress the statements in both recordings for alleged violations of the
Fifth Amendment. He presented no argument or authorities in support of his
motion but did offer to provide additional briefing. The circuit court considered his
motion a renewal of the previous pretrial motion and denied it without responding
to Rodriguez’s request to submit a brief supporting his motion.
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[¶34.] On appeal, Rodriguez does not challenge the constitutionality of his
interviews with law enforcement officers. Rather, he asserts procedural error on
the basis that the court did not properly dispose of his motion to suppress because it
failed to enter findings of fact and conclusions of law. Rodriguez seeks a remand on
this issue so that the circuit court may enter findings on his motion. However, aside
from filing a bare pretrial motion citing only the state and federal constitutional
amendments, Rodriguez presented no information or argument to the court
regarding the precise nature of his argument in support of suppression. Nor did he
submit proposed findings of fact and conclusions of law to preserve whatever issue
he was attempting to raise.
[¶35.] If Rodriguez believed the court’s terse denial of his motion to suppress
was error, it was Rodriguez’s obligation, as the party claiming error, to preserve his
record for appellate review. Without any record of the legal or factual basis for his
suppression argument, we are left to speculate regarding which grounds for
suppression he would have raised. State v. Fischer, 2016 S.D. 1, ¶ 12, 873 N.W.2d
681, 687 (requiring a party to identify the reasons for a motion or objection).
Because Rodriguez has failed to present a viable issue for review we will not
remand for further proceedings.
[¶36.] However, even if Rodriguez had clearly delineated grounds to support
that a deprivation of his constitutional rights occurred and supported his claim that
his statements to law enforcement should have been excluded, any error would have
been harmless. We deem an error harmless if we “may confidently say, on the
whole record, that the constitutional error was harmless beyond a reasonable
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doubt.” State v. Podzimek, 2019 S.D. 43, ¶ 15, 932 N.W.2d 141, 146. Harmless
error “depends upon a host of factors, all readily accessible to reviewing courts.”
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d. 674
(1986). “These factors include the importance of the witness’[s] testimony in the
prosecution’s case, whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testimony . . . [,] the extent of cross-
examination otherwise permitted, and . . . the overall strength of the prosecution’s
case.” Id. Even if the evidence should have been suppressed, the error was
harmless if “the evidence was cumulative of other evidence presented independently
at trial.” State v. Davi, 504 N.W.2d 844, 855 (S.D. 1993).
[¶37.] On appeal, Rodriguez has failed to identify any material evidence
obtained from his statements that was not cumulative to other evidence admitted at
trial through other witnesses and exhibits. In particular, even if Rodriguez’s
admission to law enforcement, that he was with Rockwood during the evening of
February 8, had been suppressed, this same fact was established through Glover’s
testimony. Glover testified that he was with Agnes when Rodriguez called, and he
could hear Rodriguez arguing with a crying woman who he believed to be Rockwood.
The phone records further showed that Rodriguez used Rockwood’s phone to make
this call, which took place a short time before the murder. 9
[¶38.] Glover also testified that he was at Agnes’s house when Rodriguez
arrived at 8:30 p.m. This testimony placed Rodriguez at Agnes’s house shortly after
9. In fact, the phone records reveal that while Glover and Agnes were together,
there were flurries of phone calls back and forth with Rodriguez using
Rockwood’s phone.
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the murder, a fact that Rodriguez had admitted to law enforcement. Additionally,
although the recording contained Rodriguez’s statement to law enforcement that he
had borrowed the white Jeep from Wilberto, law enforcement had observed
Rodriguez sitting in the white Jeep outside Agnes’s residence before speaking with
him. Glover also testified that he had seen Rodriguez outside Agnes’s house
working on a white Jeep the morning after Rockwood’s murder. Further, while
Rodriguez had told the officers about running several errands in the Jeep on the
night in question to purchase items at a Holiday gas station and at Walmart, Glover
likewise described running an errand with Rodriguez in the Jeep, specifically their
trip to a Holiday gas station to buy beer. Video surveillance tapes from Walmart
and the Holiday gas station independently establish the timeline of Rodriguez’s
activities on February 8, the night of the murder, and the early morning hours of
February 9. Moreover, Glover testified that at some point, Rodriguez told him he
had “fucked up” that night. Based on our review of the record, if the court erred in
not suppressing Rodriguez’s statements, the error was harmless because the
statements were cumulative to other evidence received.
II. Whether the circuit court abused its discretion by
declining to declare Brandon Kroll and Agent Neitzert
adverse witnesses.
[¶39.] During his case-in-chief, Rodriguez called Brandon Kroll (Kroll),
Rockwood’s ex-boyfriend, whom he designated as a potential third-party
perpetrator, and DCI Agent Neitzert to the stand. Prior to questioning either
witness, he requested that the circuit court declare the witnesses adverse. The
State objected on the basis that Rodriguez had not yet asked any questions that
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would support an adverse witness designation. The court agreed, denying
Rodriguez’s motion, and Rodriguez began questioning the witnesses.
[¶40.] Rodriguez questioned Kroll in an attempt to establish that Kroll, and
not Rodriguez, was responsible for Rockwood’s death. At no point during this
testimony did Rodriguez renew his request to declare Kroll adverse, and Kroll
answered all the questions Rodriguez asked.
[¶41.] SDCL 19-19-611 provides the mode and form a party should use when
questioning witnesses. The rule provides that “[l]eading questions should not be
used on direct examination except as necessary to develop the witness’s testimony.”
SDCL 19-19-611(c). Ordinarily, leading questions are appropriate “(1) [o]n cross-
examination; and (2) [w]hen a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party.” Id. However, “[i]t is settled law that
permitting the use of leading questions is within the discretion of the [circuit]
court.” State v. Brown, 285 N.W.2d 843, 845 (S.D. 1979). To mandate reversal, an
abuse of discretion and a showing of prejudice is required. Id. See also Armstrong
v. Longview Farms, LLP, 2020 S.D. 1, ¶ 20, 938 N.W.2d 425, 430. “An abuse of
discretion is a fundamental error of judgment, a choice outside the range of
permissible choices, a decision, which, on full consideration, is arbitrary or
unreasonable.” State v. Spaniol, 2017 S.D. 20, ¶ 12, 895 N.W.2d 329, 335.
[¶42.] While both witnesses were either adverse or potentially hostile to
Rodriguez, there is no evidence of an abuse of discretion here. The record
demonstrates that the circuit court permitted Rodriguez’s counsel significant
leeway when examining Kroll and Agent Neitzert. Indeed, his examination of the
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witnesses only drew three objections, and of those, the State challenged the form of
the question as leading only once and that objection was overruled. Because
Rodriguez has not shown how his examination was restricted, he has failed to
demonstrate any error, much less the prejudicial error, which is required for
reversal. See, e.g., Nicolay v. Stukel, 2017 S.D. 45, ¶¶ 30-31, 900 N.W.2d 71, 82;
Brown, 285 N.W.2d at 845; Longview Farms, 2020 S.D. 1, ¶ 20, 938 N.W.2d at 430.
III. Whether the circuit court violated Rodriguez’s Sixth
Amendment confrontation rights.
a. Statements of Jamie Farmer
[¶43.] Rodriguez contends that his rights under the Sixth Amendment were
violated through the State’s use of pretrial statements made by Farmer and by
Agnes to law enforcement. As to Farmer, he alleges that the court erred by
permitting a proffer from Agent Neitzert, without first determining whether
Farmer’s statements were testimonial and therefore precluded by Crawford, 541
U.S. 36, 124 S. Ct. at 1354. Although the challenged statements were never offered
into evidence, Rodriguez argues he was prejudiced because the court heard Agent
Neitzert’s testimony about the statements and he was unable to cross-examine
them due to Farmer’s absence. Rodriguez, however, has not presented this Court
with any authority that indicates that an offer of proof, in and of itself, especially
one that was not actually admitted into evidence, can be considered a constitutional
violation. Failure to cite authority renders a claim unpreserved for review on
appeal. State v. Uhing, 2016 S.D. 93, ¶ 15, 888 N.W.2d 550, 555.
[¶44.] Nonetheless, we dispose of the issue here because it has no merit. It is
well settled that a circuit court is presumed capable of “sift[ing] through any excess
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or . . . inadmissible evidence” to determine what is properly relevant and
admissible. Edgar v. Mills, 2017 S.D. 7, ¶ 23, 892 N.W.2d 223, 230. While the court
ruled that the statements made between Farmer and Agent Nietzert would be
admissible, the State ultimately chose not to offer them as evidence. There is
nothing in this record that indicates that the court relied on Farmer’s statements to
support its decision to convict Rodriguez of any of the charges.
[¶45.] Instead, the court, in its oral findings, made the following statements
with respect to Famer’s role in purchasing the gun: “The testimony about the Hi-
Point pistol being purchased by his then live-in girlfriend, Jamie Farmer, is
unrefuted, undisputed. She lived with him in 1522 Herret Street. She’s gone.
Witnesses testified that that was his gun; that he had that gun in his possession
and pointed it at people.” One such witness was Johnson, the manager of EZ Pawn,
who testified that the shop records named Farmer as the purchaser. The court also
considered the testimony of the clerk who recalled the transaction and testified that
Rodriguez was with Farmer when she purchased the gun. Rodriguez’s Sixth
Amendment right to confront Farmer was not violated because there is no evidence
that the court considered Farmer’s proffered testimony. The circuit court did not
err when it permitted the State to present its offer of proof.
b. Statements of Agnes Quinones-Rios
[¶46.] Rodriguez also claims that the circuit court violated his rights under
the Sixth Amendment by admitting a transcript of Agnes’s statement to officers
regarding her interactions with him on the night of the murder. The question
whether a defendant’s “Sixth Amendment right to confrontation was violated [] is a
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constitutional question, which we review de novo.” Spaniol, 2017 S.D. 20, ¶ 23, 895
N.W.2d at 338. “The Confrontation Clause of the Sixth Amendment to the United
States Constitution, as applied to South Dakota through the Fourteenth
Amendment, requires that in all criminal cases, the defendant has the right to be
confronted with the witnesses against him.” Id. ¶ 24, 895 N.W.2d at 338-39; see
also Crawford, 541 U.S. 36, 124 S. Ct. 1354. A violation of the Confrontation Clause
“occurs when the witness making the testimonial statements is both unavailable
and has not previously been subject to cross-examination.” State v. Richmond, 2019
S.D. 62, ¶ 30, 935 N.W.2d 792, 801. But if the witness is both available and subject
to cross-examination, the Confrontation Clause is generally not offended. See State
v. Toohey, 2012 S.D. 51, ¶¶ 16-18, 816 N.W.2d 120, 128-29.
[¶47.] Because Agnes did not remember making the statements to officers
due to her drug usage, Rodriguez argues that even though she was physically
present, he could not meaningfully cross-examine her, so she was entirely
unavailable for cross-examination. Rodriguez suggests the circuit court’s decision to
grant the State’s request to declare Agnes unavailable for purposes of the hearsay
exception in SDCL 19-19-804(a)(3) supports his argument that he was denied his
Sixth Amendment right to confront and cross-examine her. 10 In response, the State
contends that declaring Agnes unavailable due to loss of memory does not
necessarily make her unavailable for purposes of the Confrontation Clause. For
support, the State relies upon Toohey, in which we explained that “memory loss
10. SDCL 19-19-804(a)(3) provides the circumstances under which a declarant is
considered unavailable, including when those that testify do not remember
the subject matter.
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may not render a witness unavailable in the constitutional sense.” 2012 S.D. 51, ¶
16 n.2, 816 N.W.2d at 128 n.2.
[¶48.] In Toohey, we held that a child witness that struggled to respond to
questions on cross-examination nevertheless satisfied the availability requirement
under Crawford and the Confrontation Clause. Id. ¶ 18, 816 N.W.2d at 129. In
explaining our reasoning, we observed that Crawford took an “almost categorical”
approach to availability, meaning that “even a witness with no memory of the
events in question is nevertheless present and available for cross-examination
under Crawford.” Id. ¶ 16, 816 N.W.2d at 128. Yet, in Toohey, we noted that the
witness “did more than simply appear in court.” Id. ¶ 17, 816 N.W.2d at 128-29.
“She was able to testify about when and where the incidents with Toohey took
place . . . and what was said.” Id.
[¶49.] When situations arise where a defendant must confront a witness with
faulty memory, the United States Supreme Court provides helpful direction when
analyzing the degree to which the witness is available for examination. In United
States v. Owens, for instance, the Supreme Court considered the availability of a
victim with severe memory impairment due to being “brutally beaten with a metal
pipe.” 484 U.S. 554, 556-57, 108 S. Ct. 838, 840-41, 98 L. Ed. 2d. 951 (1988).
During his testimony, the victim described his memory of events immediately
preceding the attack and during the assault. Id. at 556, 108 S. Ct. at 841. Although
he also testified that he remembered identifying his assailant when he was
interviewed by an FBI agent, he admitted on cross-examination that he could not
remember actually seeing the assailants. Id. He also testified that he neither
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remembered receiving visitors in the hospital nor recalled whether any of those
visitors suggested that the defendant could have been his attacker. Id. Defense
counsel attempted to refresh the victim’s recollection that while he was in the
hospital, he had accused someone else of being the assailant, but this attempt to
refresh the victim’s memory was unsuccessful. Id.
[¶50.] In holding that the victim was available for purposes of the Sixth
Amendment, the Court reaffirmed the well-accepted proposition that “the
Confrontation Clause guarantees only an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Id. at 559, 108 S. Ct. at 842. The Court
referenced its holding in a prior case that the opportunity for cross-examination “is
not denied when a witness testifies as to his current belief but is unable to recollect
the reason for that belief. It is sufficient that the defendant has the opportunity to
bring out such matters as the witness’s bias, his lack of care and attentiveness, his
poor eyesight, and even . . . the very fact that he has a bad memory.” Id. (referring
to the witness scenario present in Delaware v. Fensterer, 474 U.S. 15, 106 S. Ct.
292, 88 L. Ed. 2d 15 (1985)). The Court then continued its analysis by comparing
the slightly different scenario present in Owens, which is more similar to the one
here, and concluded: “If the ability to inquire into these matters suffices to establish
the constitutionally requisite opportunity for cross-examination when a witness
testifies as to his current belief, the basis for which he cannot recall, we see no
reason why it should not suffice when the witness’ past belief is introduced and he is
unable to recollect the reason for that past belief. In both cases the foundation for
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the belief (current or past) cannot effectively be elicited, but other means of
impugning the belief are available. Id. (emphasis added). 11
[¶51.] Here, unlike the situation in Owens, even though Rodriguez had the
opportunity to do so, he declined to “impugn” Agnes’s claimed memory loss through
cross-examination. 12 The circuit court accordingly ruled that Rodriguez waived his
right to confront Agnes when he refused his opportunity to cross-examine her.
Rodriguez’s choice not to cross-examine Agnes and instead use her inability to recall
the events in question to attack her credibility, does not equate to a violation of his
constitutional rights. On the contrary, Rodriguez must establish that he was
denied “the traditional protections of the oath, cross-examination, and opportunity
for the [fact-finder] to observe the witness’[s] demeanor” secured by the Sixth
Amendment. Id. at 560, 108 S. Ct. at 843. This he has failed to do.
[¶52.] Our holding does not announce a categorical rule that, so long as a
witness is physically present for cross-examination, there is never a violation of the
Confrontation Clause. 13 But, based on our review of the record here, we conclude
11. The Court in Owens related as a specific example a witness stating, “I don’t
know whether this is the man who assaulted me, but I told the police I
believed so earlier.” Id. Such a statement is similar to the scenario here.
12. Rodriguez’s decision not to cross-examine Agnes as to her lack of memory is
not surprising given that her expressed failure to recall the events occurring
on the night in question ultimately allowed Rodriguez to cast doubt on any
damaging information she had previously provided to law enforcement.
13. The Eighth Circuit reaffirmed the importance of considering the
circumstances of each case in making the determination of unavailability
stating:
(continued . . .)
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that Agnes “was available for cross-examination in accord with the Confrontation
Clause” and thus, whether her prior statements were testimonial matters not. See
Toohey, 2012 S.D. 51, ¶ 18 n.3, 816 N.W.2d at 129 n.3. Therefore, Rodriguez has
not established that the court’s admission of the transcript of Agnes’s interview
with law enforcement officers violated his Sixth Amendment right to confront and
cross-examine the witnesses called against him. 14
[¶53.] However, even if the admission of Agnes’s statements violated the
Sixth Amendment, their admission was harmless error. The only hearsay
statements admitted solely through Agnes’s interview were her comments that
Rodriguez washed a load of clothes after he arrived at her house and took a shower
there later in the evening. The State repeated these statements in its closing
________________________
(. . . continued)
To be sure, simply putting a child on the stand, regardless of her
mental maturity, is not sufficient to eliminate all Confrontation
Clause concerns. If, for example, a child is so young that she
cannot be cross-examined at all, or if she is simply too young
and too frightened to be subjected to a thorough direct or cross-
examination[,] . . . the fact that she is physically present in the
courtroom should not, in and of itself, satisfy the demands of the
Clause. Under Owens, however, a perfectly satisfactory cross-
examination is not required by the Clause, and a witness who
cannot remember the details of statements she has made in the
past can still be sufficiently available for cross-examination to
satisfy the constitutional requirement.
United States v. Spotted War Bonnet, 933 F.2d 1471, 1474 (8th Cir. 1991)
(internal citations omitted) (emphasis added).
14. Rodriguez did not object on the ground that the transcript of Agnes’s law
enforcement interview was hearsay that did not fall within a statutory
exception for admission. Therefore, we decline to address this issue because
it was not preserved for appeal. Nevertheless, as noted herein, even if
wrongly admitted, the error was harmless because the challenged evidence
was largely cumulative to that properly admitted through other sources.
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argument. Each of Agnes’s other statements, including her description of
Rodriguez’s erratic behavior, his desire to download a police scanner app, and the
phone calls Rodriguez made to Agnes and Glover with Rockwood crying in the
background, were properly admitted through Glover’s testimony. Therefore, when
viewed against the cumulative nature of other evidence in this case, we “may
confidently say, on the whole record” that even if the court erred by admitting the
transcript of Agnes’s testimony, Rodriguez’s alleged Sixth Amendment violation was
“harmless beyond a reasonable doubt.” See Podzimek, 2019 S.D. 43, ¶ 15, 932
N.W.2d at 146.
IV. Whether the evidence presented at trial was sufficient to
support the convictions.
[¶54.] “The denial of a motion for judgment of acquittal is a question of law
we review de novo.” State v. Harruff, 2020 S.D. 4, ¶ 15, 939 N.W.2d 20, 25. “In
measuring evidentiary sufficiency, we ask whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” State v.
Patterson, 2017 S.D. 64, ¶ 27, 904 N.W.2d 43, 51.
[¶55.] Here, Rodriguez waived his right to a jury trial and chose to try his
case to the court. In the instance of a non-jury criminal trial, the “court shall make
general findings and shall in addition, on request made before submission of the
case to the court for decision, find facts specially. Such findings may be oral.”
SDCL 23A-18-3. “[W]hen factual findings have been made, and those findings are
not clearly erroneous, an appellate court may not set aside those findings and imply
contradictory findings.” State v. Nekolite, 2014 S.D. 55, ¶ 13, 851 N.W.2d 914, 918.
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“On review, this Court defers to the [trial] court, as fact finder, to determine the
credibility of witnesses and the weight to be given to their testimony.” Id. See also
Hubbard v. City of Pierre, 2010 S.D. 55, ¶ 26, 784 N.W.2d 499, 511.
[¶56.] Prior to trial, Rodriguez requested that the circuit court issue special
findings prior to rendering a verdict. See generally SDCL 23A-18-3. 15 At the
conclusion of the evidence, the court made oral findings in support of its decision to
convict Rodriguez of first-degree murder, second-degree murder, commission of a
felony with a firearm, first-degree arson, and aggravated assault. On appeal,
Rodriguez does not allege that any particular finding is erroneous but rather makes
a general challenge to the sufficiency of the evidence supporting the convictions,
arguing that the State failed to prove he committed the crimes. Accordingly, we
review each conviction in turn to determine whether Rodriguez’s guilty verdict is
sufficient in light of the evidence.
[¶57.] “Homicide is murder in the first degree . . . if perpetrated without
authority of law and with a premeditated design to effect the death of the person
killed or any other human being, including an unborn child[.]” SDCL 22-16-4(1).
Per SDCL 22-16-5, premeditation means:
an intention, purpose, or determination to kill or take the life of
the person killed, distinctly formed and existing in the mind of
the perpetrator before committing the act resulting in the death
of the person killed. A premeditated design to effect death
15. SDCL 23A-18-3 provides: “In a case tried without a jury a court shall make a
general finding and shall in addition, on request made before submission of
the case to the court for decision, find facts specially. Such findings may be
oral. If an opinion or memorandum of decision is filed, it will be sufficient if
the findings of fact appear therein.”
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sufficient to constitute murder may be formed instantly before
committing the act.
We have also outlined a list of factors that may be considered to determine the
existence of premeditation. Those include: “(1) the use of a lethal weapon; (2) the
manner and nature of the killing; (3) the defendant’s actions before and after the
murder; and (4) whether there was provocation.” State v. Wright, 2009 S.D. 51, ¶
60, 768 N.W.2d 512, 532. “[D]irect proof of deliberation and premeditation is not
necessary. It may be inferred from the circumstances of the killing.” Id.[¶58.] Second-degree murder under SDCL 22-16-7 requires commission of
“any act imminently dangerous to others and evincing a depraved mind, without
regard to human life[.]” Assessing the existence of a depraved mind is “determined
from the conduct itself and the circumstances of its commission.” State v. Laible,
1999 S.D. 58, ¶ 14, 594 N.W.2d 328, 333.
[¶59.] As an initial matter, we note that the parties stipulated that Rockwood
died of gunshot wounds to the head and that the manner of her death was homicide.
The unresolved issues, then, were the identity of Rockwood’s killer and the mens
rea involved in each offense. With respect to first-degree murder, the court found
that Rodriguez killed Rockwood with premeditation on February 8, 2018, in Day
County. See SDCL 22-16-4(1) (listing premeditation as an element of first-degree
murder). With reference to the alternative count of second-degree murder, the court
found that when Rodriguez killed her, he committed an act that was “imminently
dangerous to others.”
[¶60.] A close review of the record reveals that there is more than sufficient
evidence to support the court’s findings. Throughout the course of the trial, the
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circuit court considered unrefuted evidence that placed Rodriguez in Andover and
with Rockwood on February 8, the day of her death. A deputy sheriff noticed his
pickup by the apartment that morning. Barry Smith testified that Rodriguez was
at the Other Bar in Andover that evening at 6:57 p.m. Glover testified that
Rodriguez had called him and Agnes earlier in the evening using Rockwood’s phone
and that Rockwood could be heard crying in the background. The last contact with
Rodriguez using Rockwood’s phone occurred at 7:57 p.m.
[¶61.] The court also considered evidence tying the murder weapon, a
particular Hi-Point pistol, to Rodriguez. Rockwood’s former boyfriend, Anthony
Olsen, testified that Rodriguez had previously brandished the gun in his presence.
Additionally, the EZ Pawn clerk testified that she remembered selling that specific
pistol to Farmer and stated that Rodriguez was with Farmer when she bought it.
Johnson also linked Farmer and Rodriguez together through her testimony that
Farmer and Rodriguez lived together during this time frame at a rental property
that Johnson managed. The State’s firearm expert testified that in his opinion, the
Hi-Point gun discovered in the dumpster was the weapon used to kill Rockwood.
The court specifically relied on this opinion in its findings.
[¶62.] The evidence related to Rodriguez’s demeanor and actions following
the murder also support the circuit court’s finding of guilt regarding the homicide. 16
16. Although not included in the circuit court’s findings, the court heard evidence
regarding several recorded calls Rodriguez made from the jail. In one call,
which he made to Wilberto, the court heard a translation of Rodriguez saying
that, “I just call you the—the—the food for the—Nena. Keith [Glover]—I
gave it to Keith in the car to take them . . . . All that has to be secured.” To
(continued . . .)
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Glover, whom the court found credible, testified regarding Rodriguez’s bizarre
behavior that evening. He testified that Rodriguez had requested access to a police
scanner app so that he could listen to dispatch radio broadcasts. After Rodriguez
heard his cell phone number over the scanner, he gave Glover a gun matching the
description of the murder weapon and bullets and asked that Glover keep them for
him overnight and give them to Wilberto in the morning.
[¶63.] Glover also testified that, although he never saw Rodriguez with his
cell phone, he did observe Rodriguez with a SIM card and testified that Rodriguez
asked Glover if it could be traced. Glover recalled eventually handing Rodriguez
one of his own cell phones, which had a police scanner app on it for listening to law
enforcement calls, dispatch calls, and radio broadcasts. Although Rodriguez
challenges Glover’s credibility on appeal, we refrain from reweighing the evidence
or reevaluating the credibility of the witnesses, as this is within the exclusive
province of the circuit court. See Nekolite, 2014 S.D. 55, ¶ 13, 851 N.W.2d at 917-
18.
[¶64.] Officers also recovered a nylon gun holster, butane lighters, and a gas
can from Rodriguez’s Dodge pickup, and a propane torch from Wilberto’s Jeep.
Additionally, data from Wilberto’s phone placed Wilberto between Aberdeen and
Andover at 11:05 p.m. And even though the data contradicts Wilberto’s testimony
________________________
(. . . continued)
this, Wilberto replied, “What did you do with the pills?” Rodriguez then
explained that they were “in Keith’s Tahoe.”
The word Nena in Spanish, the translator explained, can mean an object.
The State’s theory throughout trial was that “Nena” meant gun, “pills” meant
bullets, and the call referred to the location of the gun.
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that he went home at 11:00 p.m. and did not see Rodriguez after that, the circuit
court considered this conflict and discounted his testimony noting “I do not believe
anything that [Wilberto] told me, quite frankly.”
[¶65.] In assessing the evidence, the court also found Rodriguez’s presence in
the Holiday gas station and in Walmart throughout the evening in question to be
nothing more than “an attempt to establish an alibi.” It therefore declined to
consider this evidence as exculpatory. As for Rodriguez’s third-party perpetrator
defense, the court wholly rejected the theory that Kroll, rather than Rodriguez,
committed the crime. It found that “[t]he idea that somehow Mr. Kroll came into
possession of that gun and used it to murder Tawny Rockwood is unsupported by
any evidence that exists.” Instead, the court found that “[w]itnesses testified that
[the Hi-Point pistol] was [Rodriguez’s] gun [and] that he had that gun in his
possession and pointed it at people.” Based on our review of the record and the
circuit court’s findings, there is sufficient evidence to support Rodriguez’s
convictions for first- and second-degree murder.
[¶66.] We turn next to commission of a felony with a firearm pursuant to
SDCL 22-14-12. The statute provides that “Any person who commits or attempts to
commit any felony while armed with a firearm, including a machine gun or short
shotgun, is guilty[.]” Id. It is undisputed that homicide is a felony. Additionally, as
we noted earlier, the parties stipulated that Rockwood died of two gunshot wounds
to the head. Finally, the circuit court found that Rodriguez killed Rockwood. These
stipulations and findings, which are supported by the record, are sufficient to
sustain his conviction for commission of a felony with a firearm.
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[¶67.] As regards the crime of first-degree arson, SDCL 22-33-9.1, provides in
part that “[a]ny person who starts a fire or causes an explosion with the intent to
destroy any occupied structure of another is guilty of first degree arson.” The
parties stipulated that the fire was an arson, “intentionally set to destroy the
building[.]” As with the murder charges, the question that remained was the
identity of the perpetrator. With respect to this conviction, the court concluded that
Rodriguez set the fire for purposes of destroying the evidence of the murder. The
court found that after he killed Rockwood, Rodriguez returned to Aberdeen in order
to gather supplies and assistance to burn the apartment building down. These
findings are supported by the evidence. Law enforcement uncovered gas cans,
lighters, and a butane torch in vehicles associated with Rodriguez. Investigators
also located the remnants of a melted gas can in the hallway by Rockwood’s
apartment.
[¶68.] The court also considered cell phone tower data showing Wilberto’s
phone leaving Aberdeen prior to the fire. Cell phone data revealed that the phone
made contact with a tower in Aberdeen at 10:49 p.m. At 11:05 p.m., it used a signal
from a cell tower near Groton, which is a small community located between
Aberdeen and Andover. The phone’s signal was then located between 11:38 p.m.
and 11:42 p.m. using the tower east of Bath, indicating that the phone was
traveling back to Aberdeen. By 11:53 p.m., the phone signal had returned to
Aberdeen. As the circuit court found, “there was no explanation why Wilberto’s
phone would be traveling that direction on that particular night at that particular
time.” The court was free to give this evidence, although circumstantial, weight
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equal to that of the direct evidence. State v. Webster, 2001 S.D. 141, ¶ 13, 637
N.W.2d 392, 396.
[¶69.] While Rodriguez attempts to suggest it would be physically impossible
for him to travel from Aberdeen to Andover and back in 64 minutes, Rodriguez’s
own witness, Angela Locke, testified otherwise. After finishing a midnight shift at
work in Aberdeen, Locke made the trip between the two towns in the early morning
hours of February 9 around the time of the discovery of the fire. In total, she stated
that the drive between Aberdeen and Andover took her approximately 25 minutes
and that she arrived back in Andover at approximately 12:45 a.m. As the State
notes, “[s]urely someone on a mission to get to Andover, commit a serious criminal
act, and leave quickly to avoid detection could complete the trip in even less time.”
The evidence, while circumstantial, is strong and sufficient to support Rodriguez’s
first-degree arson conviction.
[¶70.] Finally, Rodriguez was convicted of aggravated assault pursuant to
SDCL 22-18-1.1(1), which provides that “[a]ny person who [] [a]ttempts to cause
serious bodily injury to another, or causes such injury, under circumstances
manifesting extreme indifference to the value of human life . . . is guilty of
aggravated assault.” There can be no question that fatally shooting another person
constitutes serious bodily injury. Further, firing a gun at another certainly
“manifests extreme indifference to the value of human life.” In this case, the circuit
court found that Rodriguez shot Rockwood in the head twice, causing her death.
This evidence supports Rodriguez’s aggravated assault conviction. Based on the
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foregoing analysis and in light of the evidence as a whole, sufficient evidence exists
to support Rodriguez’s convictions.
V. Whether Rodriguez’s due process right to a fair trial was
violated as a result of cumulative errors at his trial.
[¶71.] As his final claim of error, Rodriguez asserts that the alleged errors,
when considered as a whole, support a finding that he has been denied his
constitutional right to a fair trial. See Davi, 504 N.W.2d at 857. Because the circuit
court did not err in the evidentiary rulings challenged herein, or, if error occurred,
the error was harmless, we need not address this issue.
Conclusion
[¶72.] Rodriguez did not adequately preserve his suppression motion by
setting forth the grounds for the alleged constitutional violation. Although he
renewed his suppression motion and asked the court if it wanted briefs after trial,
he did not submit proposed findings of fact and conclusions of law or request the
same from the circuit court. Without a record setting forth the grounds supporting
the motion, we deem this issue waived. Regardless, we further conclude the court’s
failure to issue the necessary findings was harmless because the evidence admitted
was cumulative to evidence properly received.
[¶73.] The court also did not abuse its discretion or commit prejudicial error
by refusing to declare certain witnesses adverse. Additionally, Rodriguez’s Sixth
Amendment rights were not violated, and there is sufficient evidence to support his
guilty verdict on all counts. We affirm.
[¶74.] GILBERTSON, Chief Justice, and JENSEN, SALTER, and
DEVANEY, Justices, concur.
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