Petition for Writ of Certiorari — Steven Tuopeh, Petitioner v. South Dakota

TUOPEH V SD: APPENDIX TO PETITION

Opinion State v. Tuopeh, #30365, 2025 S.D. 16, 19 N.W.3d 37...... . Appendix A

Order Denying the Petition for a Rehearing (April 29, 2025) ........ Appendix B

Petition for Rehearing (March 27, 2025)..........0.0.. 000000 ccc eee Appendix C.

State v. Tuopeh, 19 N.W.3d 37 (2025)

2025 S.D. 16

19 N.W.3d 37

Supreme Court of South Dakota.

STATE of South Dakota, Plaintiff and Appellee,

Vv.

Steven TUOPEH, Defendant and Appellant.

#30365

ARGUED APRIL 25, 2024

|

OPINION FILED MARCH 12, 2025

Rehearing Denied April 29, 2025

Synopsis

Background: Defendant was convicted in the Circuit Court,

Second Judicial Circuit, Minnehaha County, James A. Power,

J., of second-degree murder. Defendant appealed.

Holdings: The Supreme Court, Kern, J., held that:

defendant was not prejudiced by trial court's refusal to give

requested alternative counts jury instruction;

requested witness's refusal to come to court to testify, upon

being served with subpoena, rendered witness unavailable to

testify, such that trial court had no further obligation, in order

to meet defendant's Sixth Amendment compulsory process

rights;

defendant was not entitled to continuance of trial to allow him

additional time to subpoena witness and potentially compel

his testimony;

opposing-party exception to hearsay rule did not apply to

allow for admission of proffered double hearsay testimony by

detective relaying unavailable witness's statements about codefendant's alleged admission to detective that co-defendant

used brass knuckles while beating victim;

trial court did not abuse its discretion in determining that

Statements made by unavailable witness to detective were

insufficiently reliable to be admissible pursuant to hearsay

exception applicable to statements against penal interest;

cutor did not engage in improper vouching, during

rebuttal argument, by commenting that “my job is justice”;

and

evidence was sufficient to support finding of intent required

for murder conviction under aiding and abetting theory.

Affirmed.

Procedural Posture(s): Appellate Review; Pre-Trial Hearing

Motion; Trial or Guilt Phase Motion or Objection.

*41 APPEAL FROM THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, MINNEHAHA COUNTY,

SOUTH DAKOTA, THE HONORABLE JAMES A.

POWER, Judge

Attorneys and Law Firms

MARK KADI TRACY MILLER of Minnehaha County

Office of the Public Advocate, Sioux Falls, South Dakota,

Attomeys for defendant and appellant.

MARTY J. JACKLEY, Attorney General, JACOB R.

DEMPSEY, Assistant Attorney General, Pierre, South

Dakota, Attorneys for plaintiff and appellee.

Opinion

KERN, Justice

*42 [91.] Christopher Mousseaux was beaten to death during

an altercation with Steven Tuopeh and Jeff Pour near the

Red Sea Pub in downtown Sioux Falls. Although Tuopeh

and Pour were initially charged as co-defendants, their cases

were severed and Pour entered into a plea bargain agreement

with the State. ! After a trial, the jury found Tuopeh guilty of

second-degree murder and first-degree manslaughter. Tuopeh

appeals, arguing that the circuit court erred by failing to give

Tuopeh's requested jury instructions, in denying his motion

for judgment of acquittal, and in several legal and evidentiary

rulings. We affirm.

Factual and Procedural Background

[§2.} In the evening hours of October 10, 2021, Steven

Tuopeh and Jeff Pour, along with several other individuals,

were standing around the outside entrance to the Red

Sea Pub in downtown Sioux Falls. 2 At some point, they

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became aware of an individual in a white t-shirt—later

identified as Christopher Mousseaux—approaching from the

east. Several males, including Tuopeh and Pour, intercepted

Mousseaux before he reached the pub entrance. Although

the encounter initially seemed amicable, Mousseaux, who

appeared intoxicated, started vigorously pulling up his pants,

stepped forward, and then suddenly swung at Tuopeh and

Pour with his right fist. Mousseaux, while still facing Tuopeh

and Pour, started skipping and hopping backwards down the

street, away from the pub.

[{3.] Tuopeh and Pour followed Mousseaux for some distance

and ultimately began running towards him, with Tuopeh in

the lead. Once Tuopeh and Pour were closing in, Mousseaux

turned his back towards his pursuers and attempted to run

a few steps. However, likely due to his intoxication, he

almost immediately tripped and fell. Tuopeh and Pour began

punching and kicking Mousseaux as soon as he hit the

pavement, 3 After delivering a brutal beating, Tuopeh and

Pour walked away, leaving Mousseaux lying motionless on

the ground.

[¥4.] Law enforcement eventually received

concerning a potential stabbing or car-on-pedestrian collision

in the area. Police officers responding to the scene found

Mousseaux prone on the ground, in a pool of blood and vomit.

Mousseaux was taken to the Aveta McKennan Hospital in

Sioux Falls. He died a few days later, on October 13, 2021,

from the blunt force trauma inflicted on him during the

beating. At the time of his arrival at the hospital, Mousseaux

had a blood alcohol content of .245.

reports

[{5.] An autopsy performed by Dr. Kenneth Snell revealed

rib and skull fractures, as well as hemorrhaging in the skull.

In addition to numerous other injuries, Dr. Snell observed

several lacerations* to Mousseaux's head: one on the upper

left side of the forehead and four on the back of the head.

There was also a puncture wound in between two of the

four *43 lacerations on the back of his head. Beneath these

lacerations were several skull fractures, including a “very

complex” fracture on the front and back of Mousseaux's

skull.5 As a result of the serious head injuries Mousseaux

received, his brain hemorrhaged, causing substantial swelling

of brain tissue, which pushed the brain into the spinal cord

canal. According to Dr. Snell, this traumatic brain injury

caused Mousseaux's death, not the other injuries to his arms,

legs, and ribs.

({6.] During the ensuing criminal investigation, detectives

interviewed Pour, who acknowledged his presence at the Red

Sea Pub on the night in question. However, Pour denied

beating Mousseaux after he tripped and fell to the ground.

Pour identified a person called “Ceano” 6 as having also been

involved in the altercation with Mousseaux. Investigators

were able to obtain footage of the incident from the Red Sea

Pub and other neighboring establishments. One photograph

appeared to show “Ceno,” an African American male, holding

an object comprised of two rings and a spike at the base of

his fingers, prior to the confrontation with Mousseaux. Based

on a Facebook profile, law enforcement officers were able to

identify “Ceno” as Tuopeh, After obtaining a warrant, officers

searched Tuopeh's residence and located several items of

evidentiary value, incliding a pair of tennis shoes, matching

the shoes wom by Tuopeh as depicted on the video footage,

and a pair of blue jeans with blood stains, Law enforcement

also found a notebook with apparent rap lyrics written by

“Ceno.”

[{7.] A Minnehaha County grand jury jointly indicted Tuopeh

and Pour on three counts: Count 1, second-degree murder

(depraved mind) in violation of SDCL 22-16-7; Count 2,

first-degree manslaughter (heat of passion) in violation of

SDCL 22-16-15(2); and Count 3, first-degree manslaughter

(dangerous weapon) in violation of SDCL 22-16-15(3).7

However, after Pour reached a plea bargain agreement with

the State, the cases were severed. Prior to trial, Tuopeh moved

for a grant of statutory immunity from criminal prosecution,

pursuant to SDCL 22-18-4.8, based on his claim that he was

acting in self-defense. After an immunity hearing, the circuit

court determined that Tuopeh made a prima facie case of

self-defense by showing that Mousseaux had thrown the first

punch. However, the court determined that the State carried

its burden of rebutting the prima facie case by clear and

convincing evidence. The court specifically found that, at the

time of the beating, Mousseaux had tumed his back to run,

had fallen to the ground and no longer posed an imminent

threat to Tuopeh. Furthermore, the court concluded that, even

if Tuopeh was justified in using force to defend himself, the

use of deadly force—significant blows to Mousseaux's head

—was not reasonable. As a result, the court denied Tuopeh's

immunity motion.

[§8.] Meanwhile, on December 21, 2022, Korderro Robinson,

an inmate at the Minnehaha County Jail where Pour

was incarcerated, sent a letter to the State's Attomey's

Office, claiming to have overheard Pour making certain

incriminating statements. Although Robinson and Pour *44

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were not in neighboring cells, they were in the same cell

block for a period of time, as was Tuopeh. Robinson was

facing an upcoming sentencing hearing in January 2023,

and was pursuing sentencing concessions from the State.

In a subsequent interview, Robinson told Detective Patrick

Marino of the Sioux Falls Police Department (SFPD), that

Pour had admitted to using brass knuckles while beating

Mousseaux. ®

[{9.}] However, during Tuopeh's trial, Robinson, who was in

the penitentiary, refused to testify, despite being served with a

subpoena. The circuit court thus concluded that Robinson was

unavailable to testify. Tuopeh argued that, because Robinson

was an unavailable witness, his statements to Detective

Marino relating what Pour had told him should be admitted

under either the exception for statements against penal interest

or as nonhearsay statements made by an opposing party.

Nevertheless, the State noted that Robinson's recollection of

Pour's admission, as related by the detective, would be double

hearsay. The circuit court ultimately held that Pour was not an

opposing party and that Pour's statements, while against his

penal interest, were not sufficiently corroborated to establish

the trustworthiness of either Pour's or Robinson's statements

and were thus inadmissible.

{§10.] Additionally, at trial, the State sought to introduce a

photograph of Tuopeh's rap lyric notebook, which contained

offensive and violent lyrics, including the use of the N-word.

Although the court admitted the exhibit, it instructed the jury

to only consider the notebook for purposes of identifying

Tuopeh by his pseudonym of “Ceno.” Finally, during closing

arguments—while emphasizing that his sneakers seized from

his apartment showed no blood stains—Tuopeh accused the

State of trying to “sell” them ona theory that the sneakers had

been cleaned. In its reply argument, the State took exception

to this suggestion, responding that “I'm not a salesman. I don't

sell anything. My job is justice and bringing people to justice

who have committed crimes.” Tuopeh objected, claiming that

this statement constituted impermissible vouching, but the

objection was overruled by the circuit court.

ff1l.] At the close of evidence, the court met with the

parties to settle jury instructions, including Tuopeh's proposed

non-pattemn instructions defining speculation and conjecture,

as well as his proposed alternative counts instruction, The

circuit court refused these instructions, concluding that the

speculation instruction was unnecessarily confusing and that

the alternative counts instruction was not a correct statement

of the law as it pertained to the charges and facts presented

in the case. The court did grant Tuopeh's request for lesserincluded offense instructions on second-degree manslaughter

and simple assault. The jury found Tuopeh guilty of seconddegree murder and first-degree manslaughter.

[{12.] Prior to sentencing, Tuopeh filed a motion to vacate the

first-degree manslaughter conviction, arguing that “double

homicide convictions for a single death are improper” and that

the second conviction constitutes impermissible punishment

in violation of the double jeopardy clauses of the state and

federal constitutions. The court considered the motion at a

combined motion and sentencing hearing. The State opposed

the motion to vacate, but agreed that under the case law, it

was not appropriate for the court to pronounce judgment and

sentence on both counts. The State *45 urged the court to

enter judgment and sentence only as to Count 1, the murder

count, and leave the jury's guilty verdict on Count 2, firstdegree manslaughter, in place but “with no judgment of

conviction, no sentence ascribed to it.”

{{13.] Although the court agreed with Tuopeh and determined

that he could only have one conviction, the court said its

remedy was somewhat different than either party's proposal.

The court granted Tuopeh’s motion and vacated Count 2,

“merging” it into Count 1 and leaving a conviction only on the

murder count. The court sentenced Tuopeh to life in prison

without the possibility of parole on the second-degree murder

conviction. Thereafter, the court entered a written judgment

and sentence that first recited the jury's verdicts finding

Tuopeh guilty on both counts. It then included language

stating that the court “vacated the [jJury's guilty verdict as

to Count 2 [manslaughter in the first degree] and merged it

into a single conviction for [murder in the second degree.]”

The written judgment and sentence did not contain an express

adjudication of guilt by the court on either count,? but

did contain the court's sentence for Count 1, second-degree

murder. Tuopeh appeals raising several issues which we

restate as follows:

1. Whether the circuit court abused its discretion when it

denied Tuopeh's proposed alternative counts instruction.

2. Whether the circuit court erred by failing to procure

Robinson's attendance or admit evidence of his

statements concerning Pour's alleged admission.

3. Whether the circuit court abused its discretion

by overruling a vouching objection regarding the

prosecutor's declaration that “my job is justice.”

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4, Whether the circuit court abused its discretion by

overruling objections to Dr. Snell's testimony regarding

certain cause of death opinions.

5. Whether the circuit court abused its discretion when

it denied Tuopeh's proposed jury instructions on

speculation and conjecture.

6. Whether the circuit court erred by denying Tuopeh's

motion for judgment of acquittal.

7. Whether the circuit court erred by denying Tuopeh's

request for statutory immunity under SDCL 22-18-4.8.

8. Whether the circuit court abused its discretion by

admitting a photograph of a page ftom Tuopeh's

notebook.

Analysis

1. Whether the circuit court abused its discretion

when it denied Tuopeh's proposed alternative counts

instruction.

(§l4.] “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. Schumacher, 2021 S.D. 16, J 25, 956 N.W.2d 427,

433 (citation omitted). “We have defined abuse of discretion

as ‘discretion exercised to an end or purpose not justified by,

and clearly against, reason and evidence.’ ” State v. Carter,

2023 S.D. 67, | 24, 1 N.W.3d 674, 685 (quoting State v.

Snodgrass, 2020 S.D. 66, $ 25, 951 N.W.2d 792, 802). “Error

in declining to apply a proposed instruction is reversible *46

only if it is prejudicial, and the defendant has the burden of

proving any prejudice.” State v. Ortiz-Martinez, 2023 S.D.

46, 136, 995 N.W.2d 239, 246-47 (citations omitted). “[The]

jury instructions are to be considered as a whole, and if the

instructions when so read correctly state the law and inform

the jury, they are sufficient.” State v. Hauge, 2013 S.D. 26, ]

17, 829 N.W.2d 145, 150-51 (alteration in original) (citation

omitted). However, “it is axiomatic that there can be no abuse

of discretion in the refusal of a proposed jury instruction that

does not represent a correct statement of the law.” /d. J 18,

829 N.W.2d at 151 (quoting State v. Janklow, 2005 $.D. 25,

| 26, 693 N.W.2d 685, 695).

(915.] Here, Tuopeh requested the following alternative

counts jury instruction, which he indicated was a modification

of Criminal Pattern Jury Instruction 1-13-6:

The defendant is charged with Murder 2nd Degree,

Manslaughter Ist Degree and Manslaughter 2nd Degree.

These charges are presented in the alternative and in

effect allege that the defendant committed an unlawful act

which constitutes either the crime of Murder 2nd Degree,

Manslaughter Ist Degree, or Manslaughter 2nd Degree.

If you find that the defendant committed an act or acts

constituting one of the crimes so charged, you then must

determine which of the offenses so charged was thereby

committed.

In order to find the defendant guilty, you must all agree

as to the particular offense committed and, if you find the

defendant guilty of one of such offenses, you must find the

defendant not guilty of the others.

(§16.] During the settling of instructions, the State objected

to Tuopeh's requested instruction and contended it was not

“an accurate statement of the way the charges were brought

or how the law works.” Tuopeh claimed the instruction

was warranted because double homicide convictions for a

single death are improper, citing the constitutional prohibition

against double jeopardy addressed in this Court's prior

decisions, as well as in Ball v. United States, 470 US. 856,

105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985) and Rutledge v.

United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d

419 (1996).

[§17.] The circuit court denied the instruction. The court

determined there were differences in the homicide counts

and although it was possible that the jury could render

guilty verdicts on more than one count, if that occurred,

any concerns about multiple convictions could be resolved

in a way to avoid running afoul of the case law cited

by Tuopeh. Ultimately, the jury found Tuopeh guilty of

both second-degree murder and first-degree manslaughter.

Because the circuit court did not enter a conviction on

the latter and sentenced Tuopeh on only the second-degree

murder conviction, Tuopeh does not directly raise a double

jeopardy issue on appeal. Instead, he contends the court

committed reversible error warranting a new trial by not

instructing the jury to consider the homicide counts in the

alternative and “determine which charge had been proved, to

the exclusion of the others, if any had been proved at all.”

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[{18.] We find no abuse of discretion in the court’s refusal

to give the requested instruction. We first note that Tuopeh's

proposal incorrectly stated that second-degree manslaughter

was one of three charged offenses the jury must consider. But

only second-degree murder and first-degree manslaughter

counts were charged in the indictment, and those were the

two counts for the jury's initial consideration, At Tuopeh’s

request, instructions on second-degree manslaughter, as well

as simple assault, were presented to the jury to *47

potentially consider as lesser-included offenses. Lesserincluded offenses are distinct from the charged offenses and

were addressed in other instructions.

{J19.] More importantly, the jury was not required, as directed

by Tuopeh's requested instruction, to consider the separately

charged homicide counts in the alternative such that a finding

of guilt on one charge required a finding of not guilty on

the other. It is true that double jeopardy principles prohibit a

defendant from being convicted and punished for more than

one homicide in a single-death case. Wilcox v. Leapley, 488

N.W.2d 654, 657 (S.D. 1992). But Tuopeh emphasizes an

additional statement in Wilcox urging prosecutors to charge

homicide counts in the alternative to support his argument

that the circuit court abused its discretion in refusing his

requested instruction. However, we did not hold in Wilcox

that an indictment which did not charge in the altemative, or

that the submission of separate homicide charges to the jury

without an alternative counts instruction, was error. 10 ig

{§20.] Indeed, our more recent cases addressing double

jeopardy claims have recognized that the primary issue is

not how multiple counts are submitted to the jury, but rather

whether multiple convictions and sentences for the same act

are entered for the same conduct. We have thus noted that

the principles safeguarding the right to be free from double

jeopardy do not preclude the prosecution from charging

multiple separate counts arising from the same conduct ‘in

order to meet the evidence which may be adduced[.]” State

v. Washington, 2024 S.D. 64, J 61, 13 N.W.3d 492, 510

(alteration in original) (citing State v. Baker, 440 N.W.2d 284,

293 (S.D, 1989) and State v. Manning, 2023 S.D. 7, § 36,

985 N.W.2d 743, 755 (noting that charges of rape and sexual

contact were not required to be brought in the alternative and

that “[t]he State is not required to pick between two viable

theories that are supported by the evidence[ ]”)); see SDCL

23A-6-23; SDCL 23A-6-25. The question presented here is

whether the jury may return a guilty verdict on more than one

of the homicide counts arising out of the same conduct. In

this regard, Ball v. United States, the case Tuopeh relied on

before the circuit court and in this appeal, is instructive. 470

U.S. 856, 105 S. Ct. 1668.

[{21.] In Bali, the defendant, a previously convicted felon,

was charged under two separate federal statutes with

receiving a firearm and possessing a firearm, based on the

same conduct. 470 U.S. at 856, 105 S. Ct. at 1669. A jury

convicted him of both counts and he was sentenced on

both. /d. The Supreme Court determined the legislative intent

behind the two statutes indicated that Congress did not intend

someone to be convicted and punished for both *48 offenses

based on the same conduct. 470 U.S. at 861, 105 S. Ct. at

1671. The remedy, according to the Court, was to vacate one

of the convictions along with its sentence. 470 U.S. at 864-

65, 105 S. Ct. at 1673-74.

{22.] However, the Supreme Court made it clear there

was no impediment to the defendant being prosecuted

simultaneously for multiple charges arising from the same

conduct, explaining that the Court “has long acknowledged

the Government's broad discretion to conduct criminal

prosecutions, including its power to select the charges to

be brought in a particular case.” 470 U.S. at 859, 105 S.

Ct. at 1670; see 470 U.S. at 860 n.7, 105 S. Ct. at 1671

n.7 (noting that “the Double Jeopardy Clause imposes no

prohibition to simultaneous prosecutions” on the separate

statutory charges).

{{23.] Of particular relevance to our analysis here, the Court

in Bail did not hold that double jeopardy principles require

that two charges arising from the same conduct must be

submitted to the jury as alternative counts, To the contrary,

the Court emphasized that while a multiple-count indictment

may be brought “where a single act establishes” both offenses,

the focus is on ensuring that the accused does “not suffer

two convictions or sentences on that indictment.” 470 U.S. at

865, 105 S. Ct. at 1673, Notably, the Court further explained,

“If, upon the trial, the district judge is satisfied that there is

sufficient proof to go to the jury on both counts, he should

instruct the jury as to the elements of each offense. Should the

jury return guilty verdicts for each count, however, the district

Judge should enter judgment on only one of the statutory

offenses.” 470 U.S, at 865, 105 S. Ct. at 1673-74.

[24.] Relying on this passage from Ball, we recently

cited this approach with approval in Washington, a case

involving multipie counts of aggravated assault based on

the same conduct on which the jury had entered separate

guilty verdicts. However, because some of this Court's prior

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cases have suggested that double jeopardy concerns were not

implicated by the entry of multiple convictions so long as only

one sentence was imposed, we clarified in Washington that

“a court violates double jeopardy when it imposes multiple

convictions for a single statutory offense arising out of the

same act.” 2024 8,D. 64, 967, 13 N.W.3d at 512. We therefore

directed that “where a guilty verdict has been rendered on

multiple counts for a single statutory offense resulting from

the same act, a sentencing court should include express

language stating that no judgment of conviction is being

entered” on the remaining count or counts at issue. Jd. 71,

13 N.W.3d at $13.

(§25.] In light of these decisions, the circuit court did

not abuse its discretion when it denied the requested

alternative counts instruction and allowed the jury to consider

multiple counts of homicide and potentially render more

than one guilty verdict, even though in the end it would

be impermissible for Tuopeh to be convicted and punished

for more than one. The court's view was correct, that at

that point in time, it was unknown whether the jury would

find Tuopeh guilty of more than one count. The court

appropriately recognized that, if that occurred, it would need

to address the potential double jeopardy concerns raised by

the cases Tuopeh cited to the court, including Ball. When

multiple guilty verdicts were rendered, the court did construct

a remedy that avoided double jeopardy concerns. "" The

court's denial *49 of Tuopeh's requested instruction was

therefore not an abuse of discretion.

[{26.] Nor was Tuopeh prejudiced by the lack of an alternative

counts instruction. According to Tuopeh, such an instruction

would have forced the jury to focus on rendering a single

verdict, and he was entitled to “have the jury determine which

charge had been proved, to the exclusion of others, if any

had been proved at all.” Tuopeh's arguments ignore the fact

that, imespective of the number of charges at issue, a jury

must find that the evidence proves beyond a reasonable doubt

every element of each offense alleged before it may render a

guilty verdict as to that count. Here, the jury was instructed to

separately consider each count and the evidence that applied

to it, and further instructed that a verdict on one count must not

influence the verdict on any other count. The guilty verdicts

here demonstrate that the jury did in fact find that the evidence

proved, beyond a reasonable doubt, that Tuopeh committed

both of the charged counts.

2, Whether the circuit court erred by failing to procure

Robinson's attendance or admit evidence of his

Statements concerning Pour's alleged admission.

(]27.] Tuopeh argues that the circuit

constitutionally obligated to compel Robinson to testify

regarding Pour's alleged admission to Detective Marino that

he used brass knuckles while beating Mousseaux. The circuit

court here did issue a subpoena that was served on Robinson

on April 6, 2023. Robinson, however, refused to leave his cell

and would not come to court to testify.

court was

[§28.] Robinson's refusal to testify was conveyed to the court

and Tuopeh's counsel on the second day of the three-day trial.

The court concluded that Robinson was thus unavailable to

testify under the rules of evidence. See SDCL 19-19-804(a)(2)

(stating that a witness is unavailable when they “[r]efuse[—] to

testify about the subject matter despite a court order to do so”).

At that juncture, Tuopeh made an offer of proof, seeking to

establish that Robinson's statements to detectives conceming

Pour's alleged admission that he used brass knuckles in the

assault against Mousseaux would be admissible if presented

at trial through Detective Marino, who took the statement. As

this Court has previously observed,

The Sixth Amendment requires that

a witness be brought to court, but it

does not require that he take the stand

after refusing to testify. Once a witness

appears in court and refuses to testify, a

defendant's compulsory process rights

are exhausted. It is irrelevant whether

the witness's refusal is grounded in

a valid Fifth Amendment privilege,

an invalid privilege, or something

else entirely. The defendants’ Sixth

Amendment rights were satisfied as

soon as the [witness] appeared in court

and refused to testify[.}

State v. Crawford, 2007 S.D. 20, | 19, 729 N.W.2d 346,

350 (first alteration in original) (quoting U.S. v. Griffin, 66

F.3d 68, 70 (Sth Cir. 1995)). Here, Robinson was already

in custody and categorically refused to testify. At most,

the circuit court could have compelled his presence in the

courtroom, but such steps would have been manifestly futile

based on the undisputed *50 representations made to the

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court that Robinson adamantly refused to leave his cell to

come to court to testify. 12 after the court found, based upon

his refusal to testify, that Robinson was unavailable, the court

permitted Tuopeh to again subpoena Robinson and allow his

testimony if Robinson changed his mind before the close of

trial. '3 We are thus unable to discern error in the court's

prudential decision to classify Robinson as unavailable. ‘4

[]29.] We next consider the admissibility of proffered

testimony by Detective Marino

statements about what Pour told him. As an initial matter,

the circuit court correctly noted that such testimony would

constitute double hearsay. However, Tuopeh argued that

Robinson's statements were not necessarily offered to “prove

the truth of the matter asserted,” but rather to cast doubt on the

“caliber” of the criminal investigation. SDCL 19-19-801(c)

(2). According to Tuopeh, law enforcement should have, but

did not, follow up on the possibility that Pour used brass

knuckles.

relaying Robinson's

[§30.] However, as the circuit court noted, even if this was

indeed the case, it would not cast doubt on the investigation

into Tuopeh's culpability. The circuit court also pointed out

that, even with a limiting instruction, putting the investigation

on trial would distract from the central issue before the jury:

Tuopeh’s guilt or innocence. It is thus difficult to conclude

that testimony regarding Robinson's statements could serve a

non-hearsay purpose in this regard.

[31.] Tuopeh also argued that the testimony was admissible

under the opposing-party or against penal interest exceptions

to the rule against hearsay. However, the circuit court

correctly concluded that the opposing party in this case was

the State. Here, the offered statement was ultimately from

Pour, who is not an employee or agent of the State. Thus,

the opposing-party exception does not apply. See SDCL

19-19-801(d)(2). When a witness is unavailable, SDCL

19-19-804 allows hearsay evidence to be introduced under

certain exceptions. Specifically, *51 SDCL 19-19-804(b)(3)

permits the introduction of statements against penal interest.

But, if offered in a criminal trial, such statements must

be “supported by corroborating circumstances that clearly

indicate ... trustworthiness[.]” Id.

{§32.] While Pour's statement to Robinson was against Pour's

penal interest, the circuit court noted that this Court has “set

forth several factors for a trial court to consider in assessing

trustworthiness of hearsay offered under the residual hearsay

rule{.}” State v. Cottier, 2008 $.D. 79, 4 27, 755 N.W.2d 120,

131. These include:

(1) the character of the witness

for truthfulness and honesty and

the availability of evidence on that

question; (2) whether the testimony

was given voluntarily, under oath,

subject to cross-examination and a

penalty for perjury; (3) the relationship

of the witness to the parties and

any motivation the witness had for

making the statement; (4) the extent to

which the witness's statement reflects

personal knowledge; (5) whether the

witness ever recanted the statement;

(6) the existence of corroborating

evidence; and (7) the reasons for the

unavailability of the witness.

dd. (citation omitted).

[§33.] The circuit court concluded that these factors weighed

against a finding of trustworthiness. First, Robinson pled

guilty to a felony grand theft charge on January 27,

2023, which undermined his character for truthfulness.

Second, Robinson's statements to law enforcement, while

voluntary, were not under oath. Third, Robison had no

known relationship to Pour or Tuopeh, other than their

contemporaneous residency at the jail. Fourth, the court found

that there was credible evidence that Robinson, who was

pending sentencing on a felony charge at the time he contacted

the State, was seeking to “obtain better treatment for himself”

thus suggesting a motive to manufacture his statements. The

circuit court carefully considered Tuopeh’s proffer, but in light

of these findings, we are unable to conclude that the circuit

court abused its discretion in declining to admit the hearsay

testimony. 1s

3. Whether the circuit court abused its discretion

by overruling a vouching objection regarding the

prosecutor's declaration that “my job is justice.”

[934.] At trial, Tuopeh through the cross-examination of law

enforcement witnesses, emphasized the fact that the tennis

shoes taken from his home during the execution of the search

had no blood stains on them. In response, the State insinuated

WESTLAW © 2025 Thomson Reuters. No ciaim to original U.S. Government Works, 7

State v. Tuopeh, 19 N.W.3d 37 (2025)

2025 S.D. 16

on redirect that any blood might have been removed before

law enforcement searched Tuopeh's residence and seized the

shoes. Tuopeh responded to this suggestion during his closing

argument:

There's no evidence, whatsoever, that

the sneakers were cleaned. None. But

they try to sell you with that anyway.

Why would they even try to do that

if it's such an open and shut case?

Why do they need to suggest that the

defendant cleaned them up when he

could not have cleanfed] them up at

all? Can't possibly be true, so why push

it? I would ask that you consider, you

know, if we're all getting played here a

little bit by that tactic.

[{35.] On rebuttal, the State responded:

*52 In addition, the defense just said

to you that I was trying to sell you

something. That's not my job. I'm not

a salesman. I don't sell anything. My

job is justice and bringing people to

justice who have committed crimes.

I am not here trying to put anything

over on you. I'm here to present

evidence to you that shows that this

defendant committed these crimes.

Selling something is not what I do.

Tuopeh immediately objected on the grounds that these

statements constituted impermissible vouching, but the circuit

court overruled the objection.

[436.} “If an issue of prosecutorial misconduct is preserved

with a timely objection at trial, [this Court will] review the

trial court's ruling under the standard of abuse of discretion.”

State v. Hankins, 2022 $.D. 67, 4 31, 982 N.W.2d 21, 32-33

(alteration in original). “This Court will find that prosecutorial

misconduct has occurred if (1) there has been misconduct, and

(2) the misconduct prejudiced the party as to deny the party a

fair trial.” fd. ] 32, 982 N.W.2d at 33. “[P]rejudice can result

from the prosecution placing the prestige of the government

behind the witness and implying that the prosecutor knows

what the truth is and thereby assures its revelation.” State v.

Nelson, 2022 §.D. 12, 138, 970 N.W.2d 8 14, 826 (alteration in

original) (citation omitted). “Improper vouching ‘invitefs] the

jury to rely on the government's assessment that the witness

is testifying truthfully.’ ” Manning, 2023 S.D. 7, | 38, 985

N.W.2d 743, 755 (alteration in original) (quoting Snodgrass,

2020 S.D. 66, 445, 951 N.W.2d at 806).

(§37.] As an example, Tuopeh points to Harris v. Fluke,

where the defendant was charged with rape. 2022 S.D. 5, 969

N.W.2d 717. There, during closing arguments, the prosecutor

stated:

I thonght long and hard about this

case. I thought long and hard about

whether or not this was a case that

needed to be heard by a jury. And it's a

serious allegation. I thought about the

evidence, and I looked at the video, the

phone report. I looked at everything

and it became clear to me that Mr.

Harris did take advantage of [R.K.’s]

impairment; that she was incapable of

consent; that he knew it; and that a jury

needed to hear about it.

7d. at 718 n.1 (alteration in original). We determined these

statements constituted improper vouching. /d. at 720.

[§38.] A contextual comparison, however, reveals the State's

comments here to be of a fundamentally different character

than those of the prosecutor in Harris. In Harris, the

prosecutor specifically appealed to her review and assessment

of the evidence in deciding to bring the case to a jury. Here,

the State was responding to arguments by the defense that it

was trying to “sell” something to the jury. The State made no

statements as to the strength or credibility of any witness or

evidence, but rather focused on rejecting Tuopeh's accusation.

The “my job is justice’ comment, in context, was not an

attempt to vouch for the credibility of a particular legal

conclusion, but rather a description of the proper role of a

prosecutor made in response to a defense argument. Given

this context, we cannot conclude that the circuit court abused

its discretion in overruling Tuopeh's objection.

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State v. Tuopeh, 19 N.W.3d 37 (2025)

2025 S.D. 16

4. Whether the circuit court abused its discretion by

overruling objections to Dr. Snell's testimony regarding

certain cause of death opinions.

[939.] Tuopeh next argues that Dr. Snell impermissibly

speculated as to *53 the cause of Mousseaux's death at the

Statutory immunity hearing and during the trial. According

to Tuopeh, the State invited Dr. Snell to speculate as to

whether a kick from a shoe could have killed Mousseaux. In

addition, Tuopeh objected to Dr. Snell's testimony regarding

the amount of force necessary to cause the complex skull

fractures suffered by Mousseaux. However, these arguments

are without merit.

{40.] The questions asked of Dr. Snell during the immunity

hearing were to assist the circuit court in evaluating Tuopeh's

self-defense arguments. Thus, there was no danger of a jury

being led astray by any supposed speculation and the court

was free to weigh the credibility of Dr. Snell's testimony.

Moreover, at trial, the State did not specifically ask Dr. Snell

whether a kick with a shoe could have caused Mousseaux's

death. Tuopeh cites to the following exchange:

State: Could an additional blow make [the complex

fracture] worse? So, let's say that somebody fell and hit

an object, and then somebody kicked that person in the

head. Could that make that worse?

corey

Dr. Snell: The way that it would make that worse is if the

blow is to the opposite side while the individual is still

laying on the rock because the fall may have created the

initial simple fracture, but then an impact to the back

opposite corner of that could then force the head down

onto that rock with sufficient force to create this punchout type skull fracture, That would be the only way we

could get that from a simple fall, if [he] had an additional

injury sustained in the opposite side, shoving that further

down onto that rock area.

[41.] Here, Dr. Snell was not testifying as to his medical

opinion regarding the cause of Mousseaux's death. Instead, he

was providing context as to what factors could have caused

or exacerbated the type of injuries suffered by Mousseaux.

However, even if this was not the case, this Court has

previously held that qualified experts are permitted to testify

as to the cause of a victim's injuries and death. See State v.

Fisher, 2011 S.D. 74, 4 44, 805 N.W.2d 571, 580. Thus, Dr.

Snell's testimony was well within permissible bounds.

[42.] Tuopeh also objected to the State asking Dr. Snell what

amount of force would be necessary to cause Mousseaux's

injuries. Dr. Snell responded that a hammer blow or fall from

a second story onto a rock would be sufficient. Contrary

to Tuopeh's assertions, the State did not “ask{~] Snell

hypotheticals regarding a person falling onto a rock from

a second story building.” Instead, Dy. Snell, unprompted,

provided this as an illustrative example of the amount of

force necessary to cause the unique skull fractures suffered

by Mousseaux. But even if he had asked the above referenced

hypothetical, such testimony, particularly in the context of

an expert witness, is generally within the reasonable scope

of an expert witness's explanation of his opinion. See id.

The circuit court did not abuse its discretion in overruling

Tuopeh's objections.

5. Whether the circuit court abused its discretion

when it denied Tuopeh's proposed jury instructions on

speculation and conjecture.

[§43.] Tuopeh proposed the following alternative jury

instructions as definitions for speculation and conjecture:

* Speculation is the act of making an assumption or guess

based on small amount of data or none at all.

* Speculation is the art of theorizing about a matter as

to which evidence *54 is not sufficient for certain

knowledge.

+ Conjecture is a slight degree of credence, arising from

evidence too weak or too remote to cause belief. This

term applies to any evidence that is based on an estimate

or a guess and is insufficient to form the basis of a

conclusion.

[{44.] The circuit court denied these instructions, concluding

that the preliminary jury instruction (No. 2), which informed

the jury that their “verdict must not be based upon speculation,

guess, or conjecture” was sufficient. The court reasoned that

these three terms together would adequately convey their

related meaning to the jurors. In addition, the court pointed

out that Tuopeh's definitions could cause confusion, since it

is possible to speculate even based on a substantial amount

of data. Tuopeh argues that this ruling constituted reversible

error because his defense centered on presenting the State's

case as based on speculation and conjecture. However, we

note that, from the preliminary instructions, the jury was

already on notice that their verdict “must not be based upon

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State v. Tuopeh, 19 N.W.3d 37 (2025)

2025 S.D. 16

speculation, guess or conjecture.” The court did not abuse its

discretion in refusing additional definitional instructions that

could have confused the jury.

6. Whether the circuit court erred by denying Tuopeh's

motion for judgment of acquittal,

[945.} “This Court reviews ‘a denial of a motion for judgment

of acquittal de novo.’ ” State v, Peneaux, 2023 S.D. 15, 24,

988 N.W.2d 263, 269 (quoting State v. Timmons, 2022 S.D.

28, | 14, 974 N.W.2d 881, 887). “[A] motion for a judgment

of acquittal attacks the sufficiency of the evidence[.}” Jd.

(alterations in original). “In measuring the sufficiency of the

evidence, 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.” /d. (quoting State v. Frias, 2021

S.D. 26, | 21, 959 N.W.2d 62, 68). “ ‘[T]he jury is the

exclusive judge of the credibility of the witnesses and the

weight of the evidencef,]’ and ‘this Court will not resolve

conflicts in the evidence, pass on the credibility of witnesses,

or weigh the evidence.’ ” /d. (alterations in original).

[(46.] At the close of the State's case-in-chief, Tuopeh

moved for a judgment of acquittal. Tuopeh specifically argued

that there was insufficient evidence to conclude that any

of Tuopeh's blows and kicks caused Mousseaux's death.

Tuopeh also asserted that—compared to Pour—his actions

did not demonstrate depraved intent sufficient for a murder

conviction. The court denied Tuopeh’s motion, concluding

that, even if the jury found that Tuopeh didn't forcefully

strike Mousseaux’'s head, it could still conclude that Tuopeh’s

blows aided and abetted Pour in delivering the killing blows

to Mousseaux. On appeal, Tuopeh argues that this ruling

was error because he did not intend to assist Pour in killing

Mousseaux.

[947.] According to SDCL 22-16-7,

Homicide is murder in the second

degree if perpetrated by any act

imminently dangerous to others and

evincing a depraved mind, without

regard for human life, although

without any premeditated design to

effect the death of any particular

person, including an unbom child.

“In order to successfully prosecute a suspect for murder under

this statute, the prosecution must prove that the Defendant's

conduct established that he was acting with a depraved mind.”

State v. Harruff, 2020 S.D. 4, 139, 939 N.W.2d 20, 30 *55

(citation omitted). Tuopeh is correct that an aider or abettor

must “inten[d] to promote or facilitate the commission of a

crime[.]” SDCL 22-3-3. However, the evidence presented by

the State at trial was sufficient for a reasonable jury to make

such a finding.

(f48.] The video evidence of the beating inflicted upon

Mousseaux reveals that both Tuopeh and Pour chased

Mousseaux after the altercation. After Mousseaux fell to the

ground, they began raining powerful kicks and punches to his

head, torso and legs, with such fatal force that Mousseaux

was quickly rendered motionless. A photograph of Tuopeh

at the Red Sea Pub, derived from surveillance videos taken

just prior to the incident, revealed a device with two rings and

a spike in Tuopeh's right hand. Dr. Snell also testified that

ail of the blows to Mousseaux's head would have contributed

to his traumatic brain injury and resulting death. At the very

least, as the circuit court pointed out, a jury could conclude

that Tuopeh’s punches and kicks aided and abetted Pour's

undisputed direct punches to Mousseaux's head as he laid

upon the pavement. In viewing the evidence in the light

most favorable to the verdict, the evidence presented was

sufficient for the jury to conclude that the State proved

the essential elements of second-degree murder beyond a

reasonable doubt. The circuit court did not abuse its discretion

in denying Tuopeh's motion for acquittal.

7. Whether the circuit court erred by denying Tuopeh's

request for statutory immunity under SDCL 22-18-4.8.

[§49.] As the State points out, this Court has not yet

determined the appropriate standard of review for a circuit

court's decision to grant or deny immunity under SDCL

22-18-4.8. However, it is a general principle that “[fJactual

findings of the lower court are reviewed under the

clearly erroneous standard, but once those facts have been

determined, ‘the application ofa legal standard to those facts

is a question of law reviewed de novo.’ ” State v. Heney,

2013 S.D. 77, 78, 839 N.W.2d 558, 561-62 (quoting State

v. Hess, 2004 S.D. 60, § 9, 680 N.W.2d 314, 319). SDCL

22-18-4.8 provides that “[iJn a criminal prosecution, once a

prima facie claim of self-defense immunity has been raised by;

the defendant, the burden of proof, by clear and convincing

evidence, is on the party seeking to overcome the immunity

from criminal prosecution provided for in this section.” We

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State v. Tuopeh, 19 N.W.3d 37 (2025)

2025 S.D. 16

will apply de novo review to the application of this legal

standard to the facts before the circuit court.

[{50.] Here, before trial, Tuopeh moved for immunity from

prosecution under SDCL 22-18-4.8. At a hearing on April 4,

2023, the circuit court concluded that Tuopeh had raised a

prima facie claim of self-defense by showing that Mousseaux

was the initial aggressor. After Tuopeh called Dr. Snell and

Detective Marino as witnesses, the State did not provide any

additional testimony and rested, relying on the video evidence

that was introduced into evidence and Detective Marino's

testimony.

{51.] The circuit court held that the State had met its burden

to overcome the initial claim of self-defense. The court

found that, after the first punch, Mousseaux had performed a

“tactical retreat” and attempted to run away from Tuopeh and

Pour. At this point, the court held that it was not reasonable

for Tuopeh and Pour to view Mousseaux as an ongoing threat,

Next, the court reasoned that, even if Tuopeh and Pour were

acting in self-defense, their use of deadly force—repeated

punches and kicks to Mousseaux’s head—was not justified

because Mousseaux had *56 not engaged in a forcible felony

pursuant to SDCL 22-18-4.1.

[{52.] The court also pointed out that, based on a theory

of aiding and abetting, both Tuopeh and Pour “certainly

contributed to Mr. Mousseaux's inability to [dJodge the blows

or to fight back.” The court concluded that “at a minimum,

Mr. Tuopeh, at a time when he didn't have the right to use

deadly force, at least aided and abetted in the administration

of deadly force to Mr. Mousseaux” by participating in the

beating. Based on this reasoning, the court denied Tuopeh's

motion for immunity.

[{53.] After our review of the record and the video, we

are unable to conclude that the circuit court erred in this

instance. The video shows that Tuopeh and Pour continued

to pursue Mousseaux, even after he turned to run away.

Once Mousseaux fell to the ground, it was not reasonable for

Tuopeh and Pour to treat him as an ongoing threat. In addition,

the amount of force used in beating Mousseaux, as both

Tuopeh and Pour savagely punched and kicked him while he

was defenseless on the ground, was not reasonable. So fierce

was the attack that Tuopeh and Pour administered the killing

blows to Mousseaux in less than 30 seconds. Tuopeh aided

and abetted in the use of deadly force when he had no lawful

reason to do so, We conclude that the circuit court properly

denied Tuopeh's motion for immunity.

8. Whether the circuit court erred by admitting a

Photograph of a page from Tuopeh's notebook.

[{54.] “Our standard of review for evidentiary rulings

‘requires a two-step process: first, to determine whether the

trial court abused its discretion in making an evidentiary

ruling; and second, whether this error was a prejudicial

error that in all probability affected the jury's conclusion.’

” Hankins, 2022 S.D. 67, § 20, 982 N.W.2d at 30 (citation

omitted). “The trial court[’s] evidentiary rulings are presumed

to be correct.” Jd. (alteration in original) (citation omitted),

{]55.] During the trial, the State sought to enter a photograph

of a notebook containing offensive rap lyrics that included

the N-word and were of a violent nature. The State ostensibly

sought to enter the page from the notebook—which was found

in Tuopeh’s apartment—for identification purposes, because

it contained the pseudonym of “Ceno.” The court overruled

Tuopeh's objection but instructed the jury to only consider the

notebook as identification evidence, and not for its content.

(§56.] On appeal, Tuopeh argues that admission of the

notebook photograph was in error because his identity was

not at issue and also because of the prejudicial nature of

the lyrics. However, at trial, the State did have the burden

to connect Tuopeh to the scene of the crime. Initially, Pour

had referred to Tuopeh only as “Ceno” and the notebook

thus served as evidence tying this pseudonym to Tuopeh.

Nevertheless, the violent and insulting lyrics did paint Tuopeh

in a negative light and may have suggested a propensity for

violence. However, there was no request to redact any portion

of the exhibit and the court gave the jury a limiting instruction

at the time it was received. Under these circumstances, we

do not find the court abused its discretion in admitting the

notebook, !6

*37 [957.] Further, we conclude that any error in receiving

the entire notebook with the lyrics was not prejudicial. Juries

are presumed to follow the law set forth in the court's

instructions. See State v. Shelton, 2021 S.D. 22, 4 30, 958

N.W.2d 721, 731. The jury was faced with substantial video

evidence and testimony of Tuopeh’s guilt. We are thus not

convinced that there is a reasonable probability that, in the

absence of the photograph, the jury would have more likely

than not come to a different conclusion.

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State v. Tuopeh, 19 N.W.3d 37 (2025)

2025 S.D. 16

proved the elements of second-degree murder. Accordingly,

the circuit court did not err by denying Tuopeh's motion for

Conclusion

{{58.] Based on our review of the record and the analysis acquittal. We affirm.

set forth above, we conclude that the circuit court did not

err in denying Tuopeh's request for statutory immunity prior

to trial. Further, the court did not abuse its discretion in [{59.] JENSEN, Chief Justice, and SALTER, DEVANEY,

the formulation of the jury instructions or in the challenged and MYREN, Justices, concur,

evidentiary rulings it made throughout the trial. In viewing

the evidence in the light most favorable to the verdict there All Citations

was sufficient evidence for a jury to conclude that the State

10

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19 N.W.3d 37, 2025 S.D. 16

Footnotes

Pour pled guilty to first-degree manslaughter and was sentenced to serve 50 years in prison.

An armed security guard, Sean Tika, was also standing at the front entrance near the group. Surveillance

video from the Red Sea Pub and other neighboring businesses captured much of the encounter.

Surveillance video and trial testimony support the assertion that both Tuopeh and Pour punched Mousseaux.

Dr. Snell explained at trial that “a laceration is a tearing of the skin due to blunt force injury.”

Dr. Snell testified that a complex fracture on the forehead, like the one Mousseaux suffered, would require a

substantial amount of force—the equivalent of falling from a second floor or higher onto a rock.

in describing the suspect, Pour spelled the name “Ceano’” for the investigators, however the Facebook profile

and notebook used the spelling, “Ceno.”

Prior to trial, the State dismissed Count 3 of the indictment.

Based on this information, it appears that Tuopeh had intended to argue that Pour alone had caused the

complex fractures to Mousseaux's head and the ensuing brain trauma.

We similarly noted an absence of an express adjudication of guilt in the judgment at issue in State v.

Washington, 2024 S.D. 64, 7 69, 13 N.W.3d 492, 512.

Tuopeh’s reliance on State v. Weil, 2000 S.D. 156, 620 N.W.2d 192, is also misplaced. The Court's rationale

in Well for concluding the circuit court abused its discretion by not giving an alternative counts instruction was

that the offenses at issue were mutually exclusive. /d. | 21, 620 N.W.2d at 196. Such is not the case here. In

2005, our Legislature enacted SDCL 22-16-20.1 which directs that second-degree murder and manslaughter

in the first and second degree are lesser-included offenses of first-degree murder. By definition, lesserincluded offenses are not mutually exclusive. See State v. McCahren, 2016 S.D. 34, J 11, 878 N.W.2d 586,

593 (noting that a “greater offense cannot be committed without also committing the lesser offense”). And

contrary to Tuopeh's claim that a failure to give an alternative counts instruction warrants a new trial, this

Court did not order such relief in Well. See Well, 2000 S.D. 156, J 25, 620 N.W.2d at 197. Moreover, as

further discussed in our analysis of this issue, our case law addressing double jeopardy claims has evolved

since both Wilcox and Well.

No claim to original US. Government Works. 12

State v. Tuopeh, 19 N.W.3d 37 (2025)

2025 8.D. 16

14

12

13

14

15

16

The court's remedy included vacating the jury's guilty verdict on manslaughter and “merging” it into the murder

conviction. At the time of Tuopeh's sentencing, the circuit court did not yet have the benefit of our holding

and guidance set forth in Washington. Rather than “vacating” a jury's verdict under such circumstances, a

court should instead note in the judgment that no conviction is being entered on the count or counts at issue.

The Fifth Circuit Court of Appeals has noted that a defendant is not entitled to draw the jury's attention to

a missing witness’ absence or refusal to testify. See U.S. v. Griffin, 66 F.3d 68, 71 (5th Cir. 1995). Tuopeh

would thus not have been able to gain any strategic advantage by Robinson refusing to testify in court. In

addition, a contempt sanction would have been unlikely to succeed in this case, because Robinson was

already incarcerated,

The State had rested its case by this time and because the trial was expected to conclude at least two days

earlier than originally scheduled, Tuopeh requested that the court continue the trial until the date that the trial

was originally scheduled to conclude to allow Tuopeh additional time to subpoena Robinson and perhaps

compel his testimony. Tuopeh also suggests on appeal that the court should have directed law enforcement

to forcibly bring Robinson into court, but no such request was made at trial. Further, it is clear from the record

that both parties and the court believed that Robinson was simply unwilling to testify and would not change

his mind. The circuit court's denial of the continuance request or failure to take some other action, under

these circumstances, was not an abuse of discretion.

As an aside, in order to obtain a continuance when a witness is absent, the defendant must demonstrate

three criteria: “(1) the testimony of the absent witness is material; (2) the defendant has used due diligence

to procure the attendance of the witness of his deposition; and (3) it is reasonably certain the presence of the

witness or his testimony will be procured by the time to which the trial would be postponed.” State v. Letcher,

1996 S.D, 88, {| 30, 552 N.W.2d 402, 407. Even if Tuopeh moved for a continuance, which he did not, the

final prong would not have been met because there was no reasonable certainty that, with the passage of

additional time, Robinson would become willing to testify.

Tuopeh also argues that he was prevented from supplementing the record on trustworthiness because

Robinson, even though he was subpoenaed, refused to appear. However, as previously noted, the right to

compulsory process does not guarantee witness testimony.

The exhibit was offered through the testimony of Aidan Mullaney, a forensic specialist for the SFPD. When it

was admitted, the circuit court told the jury: “And this is the item | wanted to give you a limiting instruction on.

That photo displayed contents of the letter. I've determined those contents are both hearsay and irrelevant, so

the only purpose for which you may consider that exhibit is the fact that it shows those documents were found

in the defendant's house. One document addressed to Ceno, one document addressed to Steven Tuopeh,

It's limited to the purpose of identification. You're not to consider the contents of the letters displayed there.”

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

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2025 Thomsan Rei

SUPREME COURT -

STATE OF SOUTH DAKOTA

FILED

APR 29 2025

OF THE

STATE OF SOUTH DAKOTA * 9 Clerk

. a ws

IN THE SUPREME COURT

STATE OF SOUTH DAKOTA, ) ORDER DENYING PETITION FOR

Plaintiff and Appellee, ) REHEARING

)

vs. ) #30365

)

STEVEN TUOPEH, )

Defendant and Appellant.

)

)

A petition for rehearing in the above cause having been

filed March 27, 2025, and no issue or question of law or fact

appearing to have been overlooked or misapprehended, and more than

fifteen days having elapsed therefrom and no written statement having

been filed with the Clerk of this Court by a Majority of the justices

requesting a rehearing, now, therefore, in accordance with the

Rehearing Procedure Rule of this Court, the petition for rehearing is

denied.

DATED at Pierre, South Dakota, this 29th day of April,

2025.

BY THE COURT:

Steveh Rk, yensp n, Chief Justice

Clerk ours Supreme Court

(SEAL)

SUPREME COURT

STATE OF SOUTH DAKOTA

FILED

IN THE SUPREME COURT

APR 29 2025

OF THE g Wd

STATE OF SOUTH DAKOTA Clerk

ek wk o*

ORDER DENYING PETITION FOR

REREARING

STATE OF SOUTH DAKOTA,

Plaintiff and Appellee,

vs. #30365

STEVEN TUOPEH,

Defendant and Appellant.

A petition for rehearing in the above cause having been

filed March 27, 2025, and no issue or question of law or fact

appearing to have been overlooked or misapprehended, and more than

fifteen days having elapsed therefrom and no written statement having

been filed with the Clerk of this Court by a majority of the justices

requesting a rehearing, now, therefore, in accordance with the

Rehearing Procedure Rule of this Court, the petition for rehearing is

denied.

DATED at Pierre, South Dakota, this 29th day of April,

2025.

BY THE COURT:

ATTEST Booths

Stevbh R. Jeaskn, Chief Justice

Clerk ofthe Supreme Court

(SEAL) EXHIBIT

iP

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

STATE OF SOUTH DAKOTA,

Appellee,

Vv. * No, 30365

STEVEN TUOPEH, * PETITION FOR

REHEARING

*

Appellant.

COMES NOW, the Appellant, Steven Tuopeh, pursuant to

SDCL 15-30-4, petitions this court for a rehearing in the

above entitled matter, State v. Tuopeh, 2025 S.D. 16, and

to grant further relief to include supplemental briefing

and argument. The Appellant respectfully alleges that

points of fact and law in that opinion justify

reconsideration by this Court in the following regards.)

The Appellant‘s counsel submits this Petition in the

Appellant’s interest presently before this court, and also

to demonstrate that exhaustion of claims had been attempted

so as to assist him in any subsequent habeas review sought

in federal court. Federal habeas standards concerning

“‘clearly established Federal law’ gives defendants

incentive to pursue all colorable claims based on

‘The Appellant incorporates citation forms used in his

Appellant and Reply Briefs.

Filed: 3/27/2025 4:17 PM CST Supreme Court, State of South Dakota #30365

‘Federal law’ as far as possible in the state courts

because doing so will give them the best chance of success

in federal habeas proceedings, not to mention the

underlying state proceedings. This is a salutary effect

that serves Congress's goals in passing AEDPA.” Greene v.

Palakovich, 606 F.3d 85, 104 (3d Cir. 2010); citing Duncan

v. Walker, 533 U.S. 167, 181 (2001).

This Court’s opinion addressed alleged error of the

State and lower court in failing to procure the attendance

of witness Robinson to provide testimony per the

Defendant's right to compulsory process pursuant to the

Constitutions of the United States and South Dakota.

AE:17; (Oral argument 16:35+); Washington v. Texas, 388

U.S. 14, 18-19 (1967); U.S.Const.Amend.VI and XIV; S.D.

Const. art. VI, § 7. In addition, the means to procure

attendance were provided by the South Dakota statutes.

AP:17-18; SDCL 23A-14-3; SDCL 19-5-5. The Court discussed

in its opinion and during oral argument what attempts to

procure Robinson were attempted and were available.

The Defendant obtained a transport order prior to

trial. AP:17-18. The order was entered, but Robinson was

not transported. This occurred on the second day (Tuesday)

of the five-day evidentiary portion of the trial.

The Defendant sought to continue the trial to another

day that week to allow another opportunity for Robinson to

be transported. Id.; T2:111-12. The trial court declined

the request. 1T2:116-17. It indicated that it would only

receive Robinson’s testimony that day. 172:116-17. It

ruled that it would not wait until later in the week. Id.

On that same day (Tuesday), the Defendant requested

that the Sheriff subpoena Robinson again. The Sheriff

declined to do so. 13:3; E:22Z2. During oral argument, the

Appellee stated that a subpoena was sent out. (Oral

argument 23:30+). However, the request for continuance was

already made to allow Robinson’s testimony to be presented

later that week, but the lower court denied the request

anyway.

In its opinion, this Court presents mistakes in its

recitation of procedural and substantive facts that are

plainly erroneous and unreasonable on its face. See

Tuopeh, 2025 §.D. at n.13-14. In addressing the

continuance request, this Court stated, “The circuit

court's denial of the continuance request or failure to

take some other action, under these circumstances, was not

an abuse of discretion.” Tuopeh, 2025 S.D. at n.13

(emphasis added). For the lower court to not have abused

its discretion regarding a continuance request, it

inherently means that a continuance request was in fact

made but was rejected.

However, this Court next indicated that a continuance

request was not requested. State v. Tuopeh, 2025 S.D. 16,

n.14. In the very next footnote, this Court states “Even

if Tuopeh moved for a continuance, which he did not, the

final prong would not have been met because there was no

reasonable certainty that, with the passage of additional

time, Robinson would become willing to testify.” Id.

(emphasis added). These two statements are irreconcilable.

A request for continuance was either made, or a request was

not made. The record and footnote 13 show a request was

made. As such, facts as presented by this Court were not

merely incorrect, they were unreasonable.

This Court cites State v. Crawford, 2007 $.D. 20, 9

19, 729 N.W.2d 346, 350 and U.S. v. Griffin, 66 F.3d 68, 70

(Sth Cir. 1995)) to support its conclusion that Tuopeh’s

compulsory rights to obtain Robinson’s testimony was

exhausted. However, this Court omitted consideration ona

vitally important clause “Once a witness appears in court

and refuses to testify, a defendant's compulsory process

rights are exhausted.” Crawford, 2007 §.pD. at 19, 729

N.W.2d at 350(emphasis added). In this case, unlike

Griffin, Robinson did not appear in court and refuse to

testify. See Griffin, 66 F.3d at 70. As such, Tuopeh’s

compulsory process rights were not exhausted. His rights

remained unsatisfied since Robinson had not yet “appeared

in court and refused to testify”. Id.

The Appellant cited Washington v. Texas, 388 U.S. 14,

18-19 (1967) to support his contention that Tuopeh was

constitutionally entitled to the have compulsory process

regarding Robinson. AE:17. In Washington, the United

States Supreme Court ruled that “the petitioner in this

case was denied his right to have compulsory process for

obtaining witnesses in his favor because the State

arbitrarily denied him the right to put on the stand a

witness who was physically and mentally capable of

testifying to events that he had personally observed, and

whose testimony would have been relevant and material to

the defense.” Washington, 388 U.S. at 23 (emphasis added)

Its holding established a defendant’s right to place

Robinson on the stand, not to settle for a distant hearsay

ridden refusal outside of the courthouse. Washington did

not even explicitly contain the component of Griffin that

“The Sixth Amendment [only] requires that a witness be

brought to court.” Griffin, 66 F.3d at 70 (emphasis

added). Washington, therefore, certainly did net state

that compulsory rights are exhausted when the witness

refuses to testify outside of the courthouse, even in the

face of a subpoena or court transport order. Out of court

statements not under oath do not inherently have the same

value as statements to a court, while in court. See

U.S.Const.Amend.VI & XIV; SDCL 19-19-802. As such, this

Court’s decision to deny relief violates Tuopeh’s right to

compulsory process.

This Court’s interpretation of Crawford and Griffin

represents an impermissible extension of both cases that

were not authorized by Washington. See Williams v. Taylor,

529 U.S. 362, 407 (2000) (“a state-court decision also

involves an unreasonable application of this Court's

precedent if the state court either unreasonably extends a

legal principle from our precedent to a new context where

it should not apply”). A witness's decision to decline to

testify must manifest itself at the courthouse. At the

courthouse, Robinson’s denial can be observed in real time

by the court and parties to be actually accessed as well as

recorded for future federal review (obtainable via citation

to Washington?). Any concerns of Robinson, presently

unknown and not in this record, could have been addressed

at that time.

Justice DeVaney noted during oral argument that once

a witness is brought to the court, the testimony “may or

2? See 28 USC 2254.

may not happen”. (Oral argument 13:40+}. She did not frame

the issue as once a witness may or may not be brought to

court, the testimony may or may not happen. Nevertheless,

certainty in any choice between what may or may not happen

is absent. The notion that Robinson would definitely not

testify was speculative rather than certain as a refusal at

the courthouse did not occur.

This Court’s extension of Washington and Crawford to

include alleged refusals outside of the courthouse violates

Due Process. Constitutional Due Process and Fair Warning

principles require that any new judicial opinions changing

rules must not apply to defendants whose cases started

previously. State v. Plastow, 2015 S.D. 100, § 25, 873

N.W.2d 222, 231; citing Carmell v. Texas, 529 U.S. 513, 531

n. 21 (2000). The Appellant had no fair warning that a

reported refusal outside of the courthouse would exhaust

his compulsory process rights. Such a notion would have

been in contravention to Washington and Crawford as it

stood until their rule became inconvenient. Had such a

warning been provided, additional steps apparently, yet

wrongfully, now required by this Court and the trial court

now might be attempted.

However, once an objection or a request of a trial

court is made and refused, it is not the responsibility of

the Defendant’s counsel to suggest additional cures for any

error. Such responsibility falls on the trial court.

United States v. Barrera, 628 F.3d 1004, 1007-08 (8th Cir.

2011) (oral argument 12:20+). The trial court’s efforts,

and not the efforts of trial counsel are then reviewed

later on appeal. United States v. Hernandez, 779 F.2d 456,

460 (8th Cir.1985). This Court erred imposing additional

duties on trial counsel to suggest additional cures once

requests or objections? were presented.

This contradictory presentation of equally opposite

factual assertions is prejudicial. The notion that a

continuance request was made satisfies the need to apply

the lower court decision in abuse of discretion analysis

versus de novo review, to examine whether the claimed error

was error. Referring to the request later as being nonexistent, presents the vehicle used to jump over the non-de

novo finding to use continuance request analysis to justify

concluding that he would not testify anyway. If the

*This proposition includes Appellant’s objection on Rule

401, 403 and hearsay grounds to 137 {rap lyrics sheet) not

including a request to redact portions of the sheet.

Tuopeh, 2025 S.D. at 458. An objection was made. Neither

the State nor the trial court, however, via Barrera

suggested redactions. In addition, neither the court below

nor this Court addressed the 403 anda hearsay objections.

It relied on the notion that juries always follow

instructions, ignoring the prospect that the horrible

references within the sheet were used to identify the

defendant as similarly being horrible in nature. AP:43-44,

Constitutional issues were properly examined, this Court

would, and should, reach its own independent conclusion

that the trial court acted improperly.

This Court erroneously used standards of review in

this case to the Defendant's detriment. The Appellant

frequently raised Constitutional issues in this case. Such

issues are “subject to de novo review.” State v. Waldner,

2024 S.D. 67, § 18, 14 N.W.3d 229, 236,

Constitutional issues included but were not limited to

the compulsory process to procure Robinson’s presence. See

Washington, supra. Robinson's testimony was necessary to

meet Tucpeh’s right to present a complete defense. AP:17;

citing State v. Huber, 2010 S.D. 63, 437, 789 N.W.2da 283,

294; Crane v. Kentucky, 476 U.S. 683, 687 (1986); see State

v. Tuopeh at n.3 ("Pour alone had caused the complex

fractures to Mousseaux’s head and the ensuing brain

trauma“). Another issue also included whether the

prosecutor's reference to being the personification of

justice violated the Appellant's rights to Due Process and

a Fair Trial. See U.S. v. Young, 470 U.S. 1, 7 (1970);

Appellant’s Reply Brief 2-3.

This Court reviews Constitutional issues presented to

it de nove. As such, this Court need not grant any

discretion to the trial court on its decisions regarding

Constitutional issues raised below. Abuse of discretion

should not be used. Unfortunately, this Court utilized

abuse of discretion review regarding Constitutional issues

raised by the Appellant.

This Court did not explicitly address the

aforementioned Constitutional issues as Constitutional

issues in its Opinion. The Court did not even cite or

respond to the Constitutional authority presented by the

Appellant in his briefs and oral argument in its opinion.

Rather, the Court addressed the issues as evidentiary

matters using the abuse of discretion standard. The

Appellant requests that it performs de novo review

presently in the interest of urging resolution of all

Constitutional claims presented to this Court. See Duncan,

supra.

Use of the abuse of discretion standard makes the goal

of establishing error and attaining reversal less

achievable for Appellants. This Court’s standard of review

deprivation technique is contrary to the law of South

Dakota and the United States. The appellate procedures of

a State, once enacted and utilized by the State’s court

system, must comply with Due Process standards accorded to

this nation’s citizens through United States Constitution

via, inter alia, the Fourteenth Amendment. Smith v.

10

Robbins, 528 U.S. 259, 260 (2000); citing Griffin v.

Illinois, 351 U.S. 12, 18 (1956); Douglas v. People of

State of Cal., 372 U.S. 353, 356 (1963); Jones v. Barnes,

463 U.S. 745, 751 1983); U.S.Const.Amend. XIV. The “Equal

Protection and Due Process Clauses require that a State’s

procedure ‘afford adequate and effective appellate review

to indigent defendants’”. Smith, 528 U.S. at 261.

Prejudice is shown by virtue of the effect of how

failure to use de novo review diminished the Defendant’s

appellate rights. Achieving different results from

different standards of review is more than a theoretical

statement. It has been confirmed.

In Salve Regina College v. Russell, 499 U.S. 225

(1991), the United States Supreme Court reviewed an

analysis of a judicial review panel that had “indicated

that if the question of law were reviewed under the

deferential standard that we have applied in the past,

which permits reversal only for clear error, then they

would affirm; but if they were to review the determination

under an independent de novo standard, they would reverse”.

Salve, 499 U.S. at 238; citing In re McLinn, 739 F.24a 1395,

1397 (98 Cir, 1984). That Court maintained a "firm .

conviction that the difference between a rule of deference

11

and the duty to exercise independent review is ‘much more

than a mere matter of degree.’" Salve, 499 U.S. at 238.

With regard to the compulsory process issue, the oral

argument in this matter revealed interesting commentary.

Justice Salter inquired of Appellee’s counsel (oral

argument 21:50+), “We don’t know if he would have refused

to testify if he showed up, because he did not show up?”.

Counsel for the Appellee replied, “I suppose that is

true.”. (Oral argument 21:50+).

Assuming arguendo, that abuse of discretion review

applied here, its use might require deference to the trial

court on this issue*. However, since de novo review should

have been applied, the Court could have used its

independent judgment regarding the trial court’s ruling.

Its own decision would differ from the lower court based,

inter alia, its comments during oral arguments. See also

(Oral argument 13:40+).

‘The Appellant still argues that abuse of discretion would

provide relief as the trial court had no discretion to

disregard requirements that witness refusals occur at the

courthouse. State v. Packed, 2007 S.D. 75, § 24, 736

N.W.2d 851, 859(“{w)hen a trial court misapplies a rule of

evidence, as opposed to merely allowing or refusing

questionable evidence, it abuses its discretion.)

12

The oral argument occurred following submission of the

briefs. At that time, the Court did not know toa

reasonable certainty whether Robingon would refuse to

testify if he came to the courthouse. Otherwise, the

question need not have been asked of any party.

The Appellee’s answer is revealing as well. The State

conceded the Justice’s proposition that it was not certain

that Robinson would refuse to testify if he did show up.

That was “true”. This conclusion was shared between the

parties in the case.

If one party argues something that is undisputed, the

attorney’s statements on that topic can be binding. See

Oscanyan v. Winchester Repeating Arms Co., 103 U.S. 261,

263 (1880) (admission of plaintiff’s attorney during

opening argument binded party to its effects). As such,

the representation of the parties regarding Robinson’s

continued refusal to the Court were undisputed. Tuopeh,

2025 S.D. at 428.

Unfortunately, this Court reached the wrong conclusion

as to what was undisputed. Both sides did not dispute the

truth - it was not certain that Robinson would refuse to

testify if he showed up for court since he did not show up

to court. Rather than defer to the trial court, use of de

novo review would lead to a different, correct conclusion.

13

This Court knew the truth via its questioning and would

conclude that it was not certain Robinson would continue to

refuse to testify at the courthouse.

The trial court concluded that Robinson was unreliable

due to his criminal record, and his interest in procuring

favor from the State. This conclusion was reached despite

the lack of Robinson’s presence to determine credulity

firsthand. This reasoning violated the principles

expressed by the United States Supreme Court in Washington.

In Washington, the United States Supreme Court noted “It is

difficult to see how the Constitution is any less violated

by arbitrary rules that prevent whole categories of defense

witnesses from testifying on the basis of a priori

categories that presume them unworthy of belief.”

Washington, 388 U.S. at 22. The notion that a person is

not trustworthy due to a prior conviction and wanting to be

released is regarded as being unconstitutional per

Washington. The appearance of the witness in court would

resolve that issue. De novo review of this Constitutional

issue would lead to a conclusion independent of the trial

court that error had occurred. This Court's chosen

standard of review was incorrect and arbitrary, designed to

meet a specific end. Due process rights were violated by

this Court’s chosen process. See Dobbs v. Jackson Women's

14

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