#25569-a-JKK 

2011 S.D. 27

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

IVAN GOOD PLUME, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JOHN J. DELANEY 

Judge 

* * * * 

MARTY J. JACKLEY 

Attorney General 

JOHN M. STROHMAN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

KEVIN S. LEWIS Attorney for defendant 

Rapid City, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON FEBRUARY 16, 2011 

 OPINION FILED 06/22/11 
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KONENKAMP, Justice 

[¶1.] Defendant, a Native American, argues that he was denied due process 

in sentencing when the judge voiced a racial stereotype to describe his violent 

behavior under the influence of alcohol. The judge used the term “go native.” In 

defendant's view, the remark was “improper” and “gave the impression of bias and 

prejudice” entitling him to resentencing before another judge. Although the term 

was ill chosen, upon examining the judge’s entire remarks, we detect no risk of 

actual bias based on objective and reasonable perceptions, and thus, we affirm. 

Background 

[¶2.] Defendant Ivan Good Plume and Mary Flat Lip started dating in 

November 2008. Once they moved in together, Flat Lip saw a change in Good 

Plume’s behavior. He was often drunk, violent, and verbally abusive. One evening, 

he struck her with such force that he broke her nose. In early 2009, Flat Lip ended 

their relationship. But Good Plume would not accept her decision. He called her 

constantly. His attempts to maintain contact with her increased in May 2009, when 

she started a relationship with Michael Gregg. After she moved in with Gregg at 

his apartment in the Budget Inn Motel, Flat Lip received a letter from Good Plume 

calling her degrading names and threatening to hurt her and Gregg. 

[¶3.] On May 21, 2009, while Gregg was at work, Flat Lip went to a party at 

the Surfwood Apartments. There, she ran into Good Plume, who was “smothering . 

. . and continually grabbing and trying to have [her] kiss him and hold him.” Flat 

Lip left the party and returned to Gregg’s apartment. When Gregg returned from 

work, they ate together and watched television. Good Plume telephoned and 
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demanded to talk to Flat Lip. He threatened to beat up Gregg. Sometime after the 

call ended, Gregg and Flat Lip went to bed. They awoke to knocking at the door, 

knocking that turned into loud pounding. Suddenly, the door flew open — Good 

Plume was standing there with a shovel held in the air. Gregg ran to the door to 

force Good Plume out. Flat Lip called 911. Good Plume struck Gregg hard enough 

with the shovel to leave a lump on his head and a mark on his shoulder. 

[¶4.] In response to the 911 call, Rapid City Police Officer James Hansen 

arrived at the scene. He noticed the broken door and found a shovel on the 

premises. Good Plume was gone, but was arrested later that day. He was indicted 

on one count of first-degree burglary in violation of SDCL 22-32-1(3), and two 

alternative counts of aggravated assault in violation of SDCL 22-18-1.1(1) or (2). 

The State later filed an amended part two habitual offender information. At the 

end of the jury trial, the judge granted Good Plume’s motion for a judgment of 

acquittal on the first-degree burglary charge. The jury returned a verdict of guilty 

on count two of aggravated assault. Good Plume was later found guilty in a court 

trial of the part two information. He was sentenced to eighteen years in prison. In 

this appeal, he asserts that the sentencing judge, “in referring to a pattern of 

drunken violence by Good Plume as going native,” acted improperly and violated his 

federal and state due process rights. He also claims that the judge abused his 

discretion in admitting into evidence Good Plume's letter to Flat Lip.* 

 (continued . . .) 

* Standard of Review: We ordinarily review a defendant’s sentence for an 

abuse of discretion. State v. Overbey, 2010 S.D. 78, ¶ 13, 790 N.W.2d 35, 40 

(citation omitted). But because Good Plume claims his constitutional right to 

a fair sentencing was denied by the judge’s bias, we review his constitutional 
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__________________ 

(. . . continued) 

Analysis and Decision 

[¶5.] Good Plume seeks resentencing before another judge. He argues that 

the judge violated his right to due process at sentencing when he engaged in racial 

stereotyping. Good Plume avers that by making the statement “go native” in 

describing Good Plume’s behavior, the judge not only evinced his personal bias 

against him but also used race as a sentencing factor, a constitutionally 

impermissible consideration. The State, on the other hand, contends that a review 

of the entire transcript reveals no “personal enmity or prejudice by the judge 

against Good Plume.” 

[¶6.] A defendant has a due process right to a fair and impartial judge. In re

Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955). We presume 

our trial judges act impartially unless a specific and substantial showing can be 

made to the contrary. State v. Page, 2006 S.D. 2, ¶ 16, 709 N.W.2d 739, 750 

(citation omitted). A judge’s expression of opinion based on observation of the 

witnesses and evidence in the courtroom does not prove bias. State v. Hoadley, 2002 

S.D. 109, ¶ 33, 651 N.W.2d 249, 257 (citation omitted). Prejudice is an 

attitude of personal enmity towards the party or in favor of the 

adverse party to the other party’s detriment. It is not the mere 

possession of views regarding the law or the conduct of a party. 

Prejudice is in the personal sense rather than in the judicial 

sense and refers to a mental attitude or a disposition of the 

judge towards a party. In order for the alleged bias and 

prejudice to be disqualifying, it must stem from an extrajudicial 

source and result in an opinion on the merits on some basis 

claim de novo. See State v. Tiegen, 2008 S.D. 6, ¶ 14, 744 N.W.2d 578, 585 

(citations omitted). Evidentiary rulings are reviewed for an abuse of 

discretion. Von Sternberg v. Caffee, 2005 S.D. 14, ¶ 13, 692 N.W.2d 549, 554. 
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other than what the judge learned from participation in the 

case[.] 

Id. ¶ 33 (quoting In re C.N.H., 998 S.W.2d 553, 560 (Mo. Ct. App. 1999)). 

[¶7.] Obviously, racial bias would constitute a personal prejudice, and racial 

prejudice can hold no sway in our courts. See Batson v. Kentucky, 476 U.S. 79, 106 

S. Ct. 1712, 1728, 90 L. Ed. 2d 69 (1986) (Marshall, J., concurring); Turner v. 

Murray, 476 U.S. 28, 35-38, 106 S. Ct. 1683, 1687-89, 90 L. Ed. 2d 27 (1986). 

Numerous courts have held that race and national origin are constitutionally 

impermissible factors to consider in sentencing. See, e.g., United States v. 

Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991); United States v. Edwardo-Franco,

885 F.2d 1002, 1005 (2d Cir. 1989). Indeed, relying on a racial stereotype bears no 

reasonable nexus to proper sentencing considerations. See State v. Harris, 786 

N.W.2d 409, 427 (Wis. 2010). 

[¶8.] Was the sentencing judge’s “go native” remark evidence of racial 

prejudice? To answer this question, we must first examine the remark in context. 

Before pronouncing sentence, Judge Delaney said: 

My problem is really simple, Mr. Good Plume. The answer to it 

is, perhaps you might be the greatest human being on the face of 

the earth if you didn’t drink. But I’ve got about 35 or 40 

criminal entries in a five year span. And I would assume every 

single one of them has to do with drinking. A good share of them 

have to do with violence. A fair number of them have to do with 

women. 

And you drink and your ability to control behavior is gone. I 

mean, it’s not even mildly gone. It’s completely absolute flipping 

berserk. You dodged a potential life sentence on a slam dunk 

burglary charge because it was charged under the wrong 

subsection. The other one was an absolute, ice cold no brainer. 

And so you got a break on that. 
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And my concern with you, Mr. Good Plume, is no matter how 

good a guy you are sober, there is absolutely no way known to 

God to keep you from drinking. And once you go drinking, you 

go sideways. That’s the problem. 

I know of no cure except absolute, complete, 100 percent freedom 

from drinking and drugs of any sort, type, or nature. And as 

your crimes are violent, you put me in a position to where if I 

say, well, I think you can do that, and you go out and don’t do it, 

then I hold myself personally responsible for the harm and 

injury you cause. 

And I don’t doubt you are extremely bright. I don’t doubt you 

have a great many good qualities. And unfortunately, when you 

drink—and this was not my term. It was used by a young 

Native American in extremely violent circumstances—and he 

said go native. Now I am not sure what it means but it 

smacked of huge violence. 

And that’s absolutely descriptive of the event that went down 

that night. Absolutely descriptive of the events that brought you 

here. And I attribute it to nothing more than your inability to 

control raging anger when you are under the influence of 

alcohol. I don’t see any response to that. 

(Emphasis added.) 

[¶9.] Although use of the phrase “go native” was undoubtedly ill chosen, in 

context, the judge’s comments do not explicitly articulate racial bias or prejudice 

directed toward Good Plume. The judge never referred directly to Good Plume’s 

race. Nonetheless, the “go native” remark might be taken as giving the appearance 

of racial stereotyping. By what standard, then, do we determine when the due 

process clause requires judicial disqualification based on bias? 

[¶10.] The United States Supreme Court recently explained that “[t]he 

difficulties of inquiring into actual bias . . . simply underscore the need for objective 

rules.” Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2263, 173 L. Ed. 2d 

1208 (2009) (not published in the United States reporter). Thus, an “objective 
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standard” must be applied “that do[es] not require proof of actual bias.” Id. A 

litigant may be denied due process when there is a “serious risk of actual bias — 

based on objective and reasonable perceptions[.]” Id. Accordingly, while the due 

process clause does not require proof of actual bias for judicial disqualification, the 

mere appearance of bias is not sufficient. Rather, in the objective assessment of the 

circumstances in a particular case, there must exist “‘the probability of actual bias 

on the part of the judge or decisionmaker [that] is too high to be constitutionally 

tolerable.’” Id. at 2257 (citation omitted). And only the most “extreme facts” would 

justify judicial disqualification based on the due process clause. Id. at 2265-66. 

Where only an appearance of bias is present, recourse must be sought in state rules 

for disqualification: “Because the codes of judicial conduct provide more protection 

than due process requires, most disputes over disqualification will be resolved 

without resort to the Constitution.” Id. at 2267. 

[¶11.] Here, Good Plume has not presented “‘the probability of actual bias on 

the part of the judge . . . [that] is too high to be constitutionally tolerable.’” See id. 

at 2257 (citation omitted). On the contrary, we see no “serious risk of actual bias — 

based on objective and reasonable perceptions.” See id. at 2263. The judge 

considered Good Plume’s criminal history, his uncontrollable and habitual drinking, 

his inclination to commit crime, and his potential for future violent offenses. While 

the judge used the expression “go native,” there is scant indication that the 

statement reflected a reliance on Good Plume’s status as a Native American. In 

fact, the judge emphasized that he attributed the incident “to nothing more than 

[Good Plume’s] inability to control [his] raging anger when [he] is under the 
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influence of alcohol.” From a review of the entire sentencing transcript, we conclude 

that the sentence was based on facts introduced and events occurring in the course 

of the current proceedings or prior proceedings and not on racial stereotype or 

prejudice. See Page, 2006 S.D. 2, ¶ 16, 709 N.W.2d at 750-51. Good Plume has not 

met his burden of making a specific and substantial showing that racial or personal 

bias was used as an aggravating factor in his sentence. 

[¶12.] Good Plume next argues that it was an abuse of discretion to admit 

into evidence the threatening letter he sent to Flat Lip. To Good Plume, the letter 

constitutes Rule 404(b) evidence, which is “[e]vidence of other crimes, wrongs, or 

acts.” See SDCL 19-12-5 (Rule 404(b)). Good Plume does not dispute that he 

authored the letter, or that it was received by Flat Lip shortly before the assault on 

Gregg. Rather, he maintains that because the letter contains evidence of other acts 

and wrongs and is highly prejudicial, the judge was required to engage in the twopart probative versus prejudice analysis before admitting Rule 404(b) evidence. See

State v. Huber, 2010 S.D. 63, ¶ 56, 789 N.W.2d 283, 301. 

[¶13.] The letter was admitted, not as proof of other wrongs, crimes, or acts, 

but as res gestae evidence. “Res gestae evidence has been defined as ‘the events at 

issue or others contemporaneous with them.’” State v. Fisher, 2010 S.D. 44, ¶ 19, 

783 N.W.2d 664, 671 (quoting Bryan A. Garner, Dictionary of Modern Legal Usage 

(2d ed. 1995)). Res gestae is “the well-recognized exception to Rule 404(b).” State v.

Goodroad, 1997 S.D. 46, ¶ 10, 563 N.W.2d 126, 130 (citation omitted). We recently 

explained res gestae evidence to be a “‘matter incidental to the main fact and 

explanatory of it, including acts and words which are so closely connected therewith 
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as to constitute a part of the transaction, and without knowledge of which the main 

fact might not be properly understood.’” Fisher, 2010 S.D. 44, ¶ 19, 783 N.W.2d at 

671 (quoting Martinez v. People, 132 P. 64, 65 (Colo. 1913)). 

[¶14.] The letter was not admitted to prove that Good Plume engaged in 

other wrongs, crimes, or acts. As the judge found, the letter was necessary to prove 

Good Plume’s intent to harm Gregg. Moreover, the jury was given a limiting 

instruction. From our review of the letter and its use at trial, the judge was not 

obliged to consider the requirements of Rule 404(b) before admitting it. The letter 

details matters incidental to the case and gives context to the essential facts. It was 

so closely connected to the assault that “without knowledge of [it] the main fact 

might not be properly understood.” See id. We see no abuse of discretion in 

admitting the letter. 

[¶15.] Affirmed. 

[¶16.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, 

and MEIERHENRY, Retired Justice, concur.