#29479-a-JMK

2022 S.D. 17

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ANTHONY O. RED CLOUD, II, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

LINCOLN COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE RACHEL R. RASMUSSEN

Judge

* * * *

KRISTI JONES of

Dakota Law Firm, Prof. LLC

Sioux Falls, South Dakota Attorneys for defendant and 

appellant.

JASON R. RAVNSBORG

Attorney General

ERIN E. HANDKE

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff and 

appellee.

* * * *

CONSIDERED ON BRIEFS

JANUARY 10, 2022

OPINION FILED 03/23/22
#29479

-1-

KERN, Justice

[¶1.] A jury convicted Anthony Red Cloud II (Red Cloud) of burglary and two 

counts of simple assault arising from a home invasion. Joe Zueger (Zueger) 

encountered Red Cloud shortly after he broke into Zueger’s home. Red Cloud fled 

the home and was arrested later that morning on another charge. Zueger identified 

him as the intruder during a one-person show-up identification. Although Red 

Cloud moved to suppress this identification, the circuit court denied his motion and 

the evidence was received at trial. The State also introduced the results of DNA 

testing through expert testimony but inadvertently failed to send the expert’s report 

to the jury for their deliberations. Red Cloud moved for a mistrial on this basis, 

which the circuit court denied.

[¶2.] Red Cloud was charged and tried on a part II habitual offender

information alleging two prior felony convictions. Red Cloud moved for judgment of 

acquittal following the State’s case-in-chief on the basis that the State failed to 

prove that Red Cloud had been released from supervision for the prior felonies 

within the past 15 years. The circuit court denied this motion, and the jury found 

Red Cloud to be a habitual offender. Red Cloud appeals the circuit court’s denial of 

his motion to suppress the show-up identification, his motion for a mistrial because 

of the omission of the DNA exhibit from jury deliberations, and his motion for 

judgment of acquittal in the habitual offender trial. We affirm.

Factual and Procedural Background

[¶3.] Sometime shortly prior to 5:00 a.m. on July 1, 2019, Zueger, who was 

in his bedroom with his wife on the main floor of their home, heard a loud bang 
#29479

-2-

followed by a crash coming from the basement. The basement area had a sliding 

door entrance, and his two teenage children, Isabel and E.Z., were sleeping in their 

bedrooms in the basement. After hearing the crash, Zueger put on his glasses and 

went to the basement, where he turned on a hallway light and observed a person in 

the common room area of the basement stumbling toward him. The light in the 

common room was not on, and Zueger assumed this person had tripped over an 

ottoman in the middle of the common room. Zueger began yelling at the intruder to 

leave and noticed that the sliding glass door to their backyard was open. Zueger 

also noticed that the intruder was carrying a shovel at his side with a handle that 

appeared to be about four feet long.

[¶4.] The intruder moved into the lighted hallway area until he was just a 

few feet away from Zueger. The intruder then turned away from Zueger, lifted the 

shovel from his side, and flipped it over his back, where it hung over his shoulder on 

his right side. The intruder walked away from Zueger toward a smaller study room 

in the basement while Zueger continued yelling loudly at him to get out of the 

house. Zueger’s son, E.Z., was awakened by the commotion and came out of his 

bedroom. E.Z. walked down the bedroom hallway toward the entry to the study 

room where the intruder was located. Zueger testified that E.Z. and the intruder

“surprised” each other when E.Z. saw the intruder come out of the room. E.Z. put 

his fists up in a fighting stance, and the intruder brought the shovel across the front 

of his body in a “shielding” position. When E.Z. noticed the shovel, he backed away 

and moved toward his father until they were standing next to one another near the 
#29479

-3-

basement stairs. Zueger’s wife, Kristen, called 911 and remained on the phone with 

dispatch throughout the remainder of the encounter.

[¶5.] The intruder then moved to the bar area of the basement, and E.Z. 

picked up a guitar that was nearby, lifted it above his shoulder like a baseball bat, 

and “pumped” it at the intruder to try to scare him away. The intruder left the 

basement through the sliding glass door, taking the shovel he was carrying with 

him. Zueger quickly shut the sliding door and managed to secure it even though the 

lock was damaged. While he was doing so, his daughter, Isabel, came out of her 

room after having been awakened by the noise. Zueger testified that the time that 

had elapsed from when he first saw the intruder to when the intruder left the house 

was approximately 45 seconds to one minute and 15 seconds.

[¶6.] After the intruder left the house, Kristen gave Zueger the phone and 

he spoke to 911 dispatch. Zueger described the intruder to the dispatcher as a

Hispanic male with very short hair and many non-colored tattoos. Further, Zueger 

reported that the intruder was not wearing a shirt and was carrying a spade-like 

shovel.

[¶7.] Unsure if there were other intruders in the home, the family secured 

themselves in an inner room to wait for law enforcement to arrive. From a window, 

they could see a dark colored bike laying near the sliding glass door through which 

the intruder had fled. They were unsure at the time if it was one of the family

members’ bikes, but later determined that it was not. When law enforcement 

arrived around 5:00 a.m., they cleared the home to make sure it was safe, 

interviewed the family, took photographs of the sliding door, and took DNA swabs 
#29479

-4-

from the handles of the dark colored bike. It appeared that the sliding glass door 

had been pried open and the intruder had entered the house through it, leaving the 

bike laying outside and failing to take the bike with him when he fled. During his 

interview with law enforcement, in addition to the details he described to the 911 

dispatcher, Zueger described the intruder as a tall male (around 6’1”) with a 

muscular build, barefoot, and wearing baggy gray shorts.

[¶8.] A couple of hours later, construction workers at a site about a quarter 

mile from the Zuegers’ house contacted law enforcement, reporting that there was a 

man sleeping in one of the construction trucks that had been left at the site 

overnight. The truck was locked with the man inside. Law enforcement officers

responded and were able to get the man out of the truck without incident. The 

man, identified as Anthony Red Cloud II, was handcuffed and placed in the back of 

a police car. Red Cloud was Native American with a buzz cut and many black 

tattoos, and he was wearing wet, gray sweatpants but was not wearing a shirt or 

shoes. Based on the similarity of Red Cloud’s appearance to the intruder described 

by the Zuegers and his close proximity to their house, law enforcement decided to 

see if the Zuegers could identify Red Cloud as the person who had been in their 

basement earlier that morning.

[¶9.] Officer Brian Rhinewald went to their home, finding only Zueger and 

Isabel present. He informed them that law enforcement officers had detained a 

man that may or may not fit the description of the intruder and asked if Zueger 

would accompany him to see if he could identify the individual. Zueger agreed, and 

Officer Rhinewald drove them to the construction site where Red Cloud had been 
#29479

-5-

arrested. They arrived around 8:00 a.m., and two police officers removed Red 

Cloud, who was handcuffed, from the back of their police vehicle and brought him to 

the front of the police car in which Zueger was sitting in the passenger seat. Upon 

seeing Red Cloud from the front, from a distance of approximately 30–45 feet, 

Zueger said he was 90–95% sure that Red Cloud was the intruder. Zueger asked to 

see Red Cloud’s back. After the officers turned Red Cloud around and Zueger saw 

the tattoos on Red Cloud’s back, he stated that he was 110% sure that he was the 

intruder. Law enforcement also showed Zueger two shovels that were at the 

construction site, but Zueger did not believe either of them was the shovel carried 

by the intruder in his basement. Regardless, law enforcement took DNA swabs 

from the handles of both shovels for testing.

[¶10.] The State charged Red Cloud by complaint and information with three 

alternative counts of first-degree burglary, two counts of aggravated assault (one as 

to Zueger and one as to E.Z.), two counts of simple assault, and one count of 

criminal entry of a motor vehicle.1 Additionally, the State filed a part II 

information alleging Red Cloud was a habitual offender having two prior felony 

convictions for robbery in 1994. Red Cloud filed a motion to suppress Zueger’s 

identification of him on the day of the intrusion and also Zueger’s subsequent incourt identification at the preliminary hearing. The circuit court held a hearing on 

Red Cloud’s motion on January 28, 2020, at which Zueger testified to the intrusion 

and his identification of Red Cloud. Officer Blake Davis testified to Zueger’s 

reported description of the intruder prior to the show-up identification of Red Cloud 

1. The State did not present evidence at the preliminary hearing regarding the 

criminal entry of a motor vehicle charge and it was not bound over for trial.
#29479

-6-

at the construction site, and Officer Rhinewald testified to Zueger’s identification of 

Red Cloud in the show-up identification. The circuit court denied Red Cloud’s 

motion in a memorandum decision and order dated February 14, 2020, concluding 

that while the identification was suggestive, the effect of the suggestive procedure 

was “outweighed by the accuracy and reliability of the eyewitness identification and 

the timing of the show up.”

[¶11.] Red Cloud’s jury trial began on July 14, 2020. Zueger, Kristen, Isabel, 

and E.Z. all testified regarding their observations on the night of the intrusion. 

Although their stories were largely the same, Red Cloud established several 

inconsistencies on cross-examination, including that Zueger testified that the shovel 

Red Cloud was holding had a normal handle, while Kristen and E.Z. testified it had 

a long, metal spike on the end where the handle would have been; and that Zueger, 

Isabel, and E.Z. testified that the overhead corridor lights were on in the basement, 

while Kristen testified that they were not. In addition, Zueger estimated that the 

incident lasted between 45 seconds to one minute and 15 seconds, whereas E.Z. 

testified that his interaction with the intruder lasted for “20 seconds maximum.”

[¶12.] Additionally, several law enforcement officers testified about the 

investigation of the incident and/or Zueger’s identification of Red Cloud. Taylor 

Ripley, a state forensic laboratory scientist, testified that he received swab samples 

taken from the bike left outside the Zuegers’ basement sliding glass door and from 

the two shovels found at the construction site. Ripley was unable to get a usable 

DNA sample from either of the swabs taken from the shovels but was able to get a 

DNA sample from the bike swabs. Ripley compared this sample to a sample from 
#29479

-7-

Red Cloud and determined it to be a match. The State entered Ripley’s report into 

evidence as Exhibit 15 without objection from Red Cloud. However, Ripley took 

Exhibit 15 with him when he left the courtroom, and no one realized that it was 

missing until after the jury had reached its verdict.

[¶13.] The jury found Red Cloud not guilty of one of the first-degree burglary 

counts and both of the aggravated assault counts. However, the jury determined 

that Red Cloud was guilty of two alternative first-degree burglary counts and the 

two counts of simple assault. Red Cloud brought a motion for a mistrial on July 27, 

2020, after discovering that Exhibit 15 had not been given to the jury. The circuit 

court denied the motion, holding that although the failure to submit Exhibit 15 to 

the jury was error, it was not prejudicial because the state lab technician testified to 

the contents of Exhibit 15 and was subjected to cross-examination shortly before the 

case was submitted to the jury. The circuit court further determined that even if 

the error did have an effect on the jurors, it did not rise to a level that infringed on 

Red Cloud’s substantive right to a fair trial.

[¶14.] Red Cloud’s jury trial on the part II information was held on August 

28, 2020. The State admitted certified copies of the judgments and sentences of 

conviction for two separate robberies, both sentences imposed on December 16, 

1994. In support of its claim that Red Cloud was one and the same person 

previously convicted of these prior felonies, the State called Heather Specht, a 

South Dakota Forensic Lab employee who specialized in fingerprint evidence. 

Specht testified that she compared Red Cloud’s fingerprints from his arrest for the 

Zueger burglary to the two sets of fingerprints from his arrests resulting in the 1994 
#29479

-8-

convictions. Based on this comparison, she concluded that all three sets of 

fingerprints were made by the same individual. The State rested its case-in-chief 

after Specht’s testimony.

[¶15.] Red Cloud moved for judgment of acquittal on the basis that the State 

had failed to produce any evidence that Red Cloud was discharged from his 

sentences imposed on the 1994 robberies within the last 15 years as required by 

SDCL 22-7-9. The State responded that it was only required to prove the elements 

of SDCL 22-7-7 and -11. Additionally, the State argued that the judgments of 

conviction which were introduced into evidence established that Red Cloud received 

two consecutive 20-year sentences for the 1994 robberies. The State claimed that it 

“can be deduced therefrom that the defendant would have been discharged within 

the 15 years from the date of the offense in our matter.” The circuit court denied 

Red Cloud’s motion for judgment of acquittal, stating, “I do not believe that [SDCL] 

22-7-9 is an element of the habitual offender statute that the jury has to find.” The 

circuit court further concluded that Red Cloud was required to have raised this 

issue prior to trial via a motion to dismiss the part II information. Red Cloud had 

not filed a pretrial motion to dismiss. The jury found Red Cloud was a habitual 

offender having been convicted of two robberies in 1994.

[¶16.] The circuit court sentenced Red Cloud on October 13, 2020, to 50 years 

in prison, ten suspended, on one count of first-degree burglary. The maximum 

sentence which could be imposed for this offense was enhanced to that of a Class 1 
#29479

-9-

felony because of Red Cloud’s habitual offender status.2 The circuit court gave Red 

Cloud 470 days credit for time served. Red Cloud was additionally sentenced to 360 

days in the county jail for each of the simple assault charges, which were fully 

satisfied by Red Cloud’s credit for time served.

[¶17.] Red Cloud appeals his conviction, raising the following issues which we 

restate as follows:

1. Whether the circuit court erred by denying Red Cloud’s 

motion to suppress Zueger’s show-up identification.

2. Whether the circuit court erred in not granting a mistrial 

because Exhibit 15 was not submitted to the jury during 

their deliberations.

3. Whether the circuit court erred in denying Red Cloud’s 

motion for judgment of acquittal during trial on the part 

II habitual offender information.

Analysis and Decision

Show-Up Identification of Red Cloud as Intruder

[¶18.] Red Cloud argues that his due process rights were violated by Zueger’s 

identification of him in that the one-person show-up identification was 

“unnecessarily suggestive and conducive to irreparable mistaken identification[.]” 

(quoting Neil v. Biggers, 409 U.S. 188, 196, 93 S. Ct. 375, 380, 34 L. Ed. 2d 401 

(1972)). Red Cloud contends that the identification procedure was impermissibly 

suggestive in that he was the only potential suspect shown to Zueger, was 

handcuffed, was escorted by two police officers, and emerged from the back of a 

2. Because the second count of first-degree burglary for which Red Cloud was 

convicted was an alternative count, the circuit court did not impose a 

sentence on that count.
#29479

-10-

police vehicle to be identified. Further, he submits that there were no exigent 

circumstances necessitating a show-up identification because he had already been 

arrested for being in the construction vehicle and because a photo lineup for a 

different investigation was created with his photo within a few hours of the show-up 

identification.

[¶19.] Moreover, Red Cloud argues that, under the totality of the 

circumstances, the identification “created a [very] substantial likelihood of 

irreparable misidentification.” (quoting Neil, 409 U.S. at 201, 93 S. Ct. at 383). In 

support of this argument, Red Cloud argues that Zueger had a limited opportunity 

to observe the intruder during the crime; that his degree of attention to the intruder 

was hindered by alarm for himself and his family; that Zueger testified that he 

focused on the shovel the intruder was holding rather than on the intruder himself; 

that the encounter was brief; and that Zueger’s description of the intruder 

contained several inaccuracies when compared to Red Cloud. Red Cloud further 

asserts that even though Zueger expressed a high degree of certainty that Red 

Cloud was the intruder in his identification, that certainty does not outweigh the 

other negative indicators of reliability and is a poor gauge of accuracy.

[¶20.] The State, in response, does not appear to contest that the show-up 

identification was inherently suggestive and unnecessary because although it 

recites the circuit court’s finding that the identification was suggestive, it does not 

present arguments negating that finding. The State instead argues that under the 

totality of the circumstances, Zueger’s identification of Red Cloud was reliable and 

did not create a substantial likelihood of irreparable misidentification. The State 
#29479

-11-

contends that Zueger, having been the victim of the crime, had a sufficient degree of 

attention to accurately describe the intruder; that his description of the intruder as 

compared to Red Cloud was generally correct; that the discrepancies emphasized by 

Red Cloud go to the weight, rather than the admissibility, of the identification; and 

that Zueger’s certainty in his identification and the short time frame between the 

crime and the identification also weighs in favor of the reliability of the 

identification.

[¶21.] We review “the denial of a motion to suppress based on the alleged 

violation of a constitutionally protected right as a question of law by applying the de 

novo standard of review.” State v. Angle, 2021 S.D. 21, ¶ 14, 958 N.W.2d 501, 506 

(citation omitted). We review any underlying factual findings of the circuit court 

“under the clearly erroneous standard.” State v. Doap Deng Chuol, 2014 S.D. 33, ¶ 

19, 849 N.W.2d 255, 261 (citation omitted).

[¶22.] A defendant’s due process rights may be violated “when law 

enforcement officers use an identification procedure that is both suggestive and 

unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 238–39, 132 S. Ct. 716, 724, 

181 L. Ed. 2d 694 (2012) (citations omitted). If the identification procedure is both 

suggestive and unnecessary, the procedure is improper; thus, “the Due Process 

Clause requires courts to assess, on a case-by-case basis, whether improper police 

conduct created a ‘substantial likelihood of misidentification.’” Id. at 239, 132 S. Ct. 

at 724 (quoting Neil, 409 U.S. at 201, 93 S. Ct. at 383). The identification should 

only be suppressed if “the indicators of a witness’[s] ability to make an accurate 

identification are outweighed by the corrupting effect of law enforcement 
#29479

-12-

suggestion[.]” Id. at 239, 132 S. Ct. at 725 (cleaned up). The policy underlying this 

approach is to “deter law enforcement use of improper lineups, showups, and photo 

arrays in the first place.” Id. at 241, 132 S. Ct. at 726. Show-up identifications are 

inherently suspect: “[t]he practice of showing suspects singly to persons for 

purposes of identification has been consistently condemned as an affront to the 

requirements of due process and good police procedure.” State v. Reiman, 284 

N.W.2d 860, 871 (S.D. 1979) (citations omitted).

[¶23.] In Neil, the U.S. Supreme Court identified the factors that must be 

considered when determining if improper police conduct created a substantial 

likelihood of misidentification. 409 U.S. at 199, 93 S. Ct. at 382. The factors 

include the following:

[T]he opportunity of the witness to view the criminal at the time 

of the crime, the witness’ degree of attention, the accuracy of the 

witness’ prior description of the criminal, the level of certainty 

demonstrated by the witness at the confrontation, and the 

length of time between the crime and the confrontation.

Id. at 199–200, 93 S. Ct. at 382.3 If these factors show that the reliability of the 

identification outweighs the suggestive procedure used, the identification should be 

admitted. Perry, 565 U.S. at 239, 132 S. Ct. at 724.

[¶24.] Here, regarding the suggestiveness and necessity of Red Cloud’s showup identification, the State acknowledges that the “circuit court found the show up 

3. Whether these factors truly capture the degree of likelihood of 

misidentification is unclear. As the U.S. Supreme Court acknowledged in 

Perry, referencing the amicus brief submitted by the American Psychological 

Association, there has been research since Neil was decided in 1972 

“indicating that as many as one in three eyewitness identifications is 

inaccurate.” 565 U.S. at 245, 132 S. Ct. at 728.
#29479

-13-

was inherently suggestive.” The circuit court reasoned, regarding suggestiveness 

and necessity, that Red Cloud “was removed from the back of a patrol car, in 

handcuffs, and shown as a sole suspect to the victim, Mr. Zueger. In addition, 

testimony was introduced that a lineup or photo identification was available later 

that day.” The circuit court also relied on United States v. Hadley, an Eighth 

Circuit Court of Appeals case, holding that “show-ups are inherently suggestive and 

ordinarily cannot be condoned when a line-up procedure is readily available.” 671 

F.2d 1112, 1115 (8th Cir. 1982). However, as the circuit court correctly observed, 

the court of appeals further held that “suggestive procedures, without more, do not 

require a holding that the due process clause has been violated.” Id.

[¶25.] We agree with the circuit court that Red Cloud’s identification 

procedure was suggestive and that conducting a show-up identification was 

unnecessary considering that a six-person photo lineup containing Red Cloud’s 

picture was used in a separate investigation just a few hours after the show-up 

identification. We therefore consider the Neil factors to determine whether, under 

the totality of the circumstances, Red Cloud’s suggestive and unnecessary show-up 

identification created a substantial likelihood of misidentification.

The opportunity of the witness to view the criminal at the time of the crime

[¶26.] At trial, Zueger testified that the intruder was in the basement 

between 45 seconds and one minute 15 seconds. During this time, the intruder was 

moving into and out of the lighted corridor area and the other areas of the basement 

with varying degrees of light, including the common room area, the study room, and 

the bar area. This means that within the estimated 45 to 75 seconds that the 
#29479

-14-

intruder was in the basement, Zueger was only able to view the intruder in full light 

for a fraction of that time.

[¶27.] In Doap Deng Chuol, we determined that the witness had sufficient 

and “ample opportunity” to observe the defendant because the witness had multiple, 

minutes-long interactions with the defendant, had given the defendant rides home 

in her car, and had spent time socially with the defendant. 2014 S.D. 33, ¶ 23, 849 

N.W.2d at 261. Although Zueger’s encounter with Red Cloud was very brief, at one 

point, he was within four feet of Red Cloud and able to view his shirtless and 

tattooed back in the basement corridor light. This view of Red Cloud allowed 

Zueger to make his identification with certainty when the officer showed him Red 

Cloud’s tattooed back. At other points in the encounter, Zueger was able to view 

Red Cloud from varying angles in varying degrees of light. Although Zueger’s 

encounter did not provide the same opportunity for observations as the witness had 

in Doap Deng Chuol, each case is factually unique, and we determine that the 

evidence detailing Zueger’s observations was sufficient to support the identification.

The witness’s degree of attention

[¶28.] Zueger testified at trial that he was anxious and feared for his family’s 

safety during the intrusion. His attention was also divided between the intruder 

and the shovel that the intruder was carrying. He testified that:

while [the intruder] was in the basement I was so focused on the 

shovel and watching the shovel out of fear for what might be 

done with the shovel. That when it got slung over his shoulder, 

he rotated away. I felt like I got a decent look at his back and I 

recalled at that point that there was tattooing on not only 

around his neck, but on one side more than the other[.]
#29479

-15-

Zueger expounded on the experience, testifying, “I will tell you that my eyes were on 

the shovel almost exclusively. I was not assessing the person in any detail close 

enough to identify anything like a scar, mark, or anything like that.”

[¶29.] Red Cloud contends that Zueger’s focus on the shovel negatively 

impacts the reliability of his identification. To support his argument, Red Cloud 

relies on State v. Harris, in which the Connecticut Supreme Court discussed the 

“‘weapon focus’ effect” which is “a phenomenon whereby the reliability of an 

identification can be diminished by a witness’[s] focus on a weapon[.]” 191 A.3d

119, 131 (Conn. 2018) (cleaned up). Red Cloud argues that according to the 

Connecticut court, “[w]eapon focus refers to the visual attention that eyewitnesses 

give to a perpetrator’s weapon during the course of a crime. It is expected that the 

weapon will draw central attention, thus decreasing the ability of the eyewitness to 

adequately encode and later recall peripheral details.” Id. (quoting N. Steblay, A 

Meta-Analytic Review of the Weapon Focus Effect, 16 L. & Hum. Behav. 413, 414, 

420 (1992) (concluding that the “presence of a weapon does make a significant 

difference in eyewitness performance”)).

[¶30.] In Doap Deng Chuol, we determined that the witness, who was a 

confidential informant for law enforcement, had a sufficient degree of attention as 

she “was not a bystander or casual observer.” 2014 S.D. 33, ¶ 24, 849 N.W.2d at 

261–62. Here, Zueger was not a bystander or casual observer, and while his 

attention may also have been claimed by the shovel the intruder was carrying, that 

attention helped him identify the intruder from the back—when the intruder slung 

the shovel over his shoulder and down his back, he drew Zueger’s attention to the 
#29479

-16-

intruder’s distinctive tattoo pattern on his back and neck. Overall, Zueger’s degree 

of attention during the encounter was sufficient to support the reliability of his 

identification.

The accuracy of the witness’s prior description of the criminal

[¶31.] Zueger’s prior description of the intruder was largely accurate when 

compared to Red Cloud’s characteristics. Zueger described the intruder as having a 

muscular build, being shirtless and shoeless, having very short, cropped hair, and 

having many grayscale tattoos—all descriptors matching Red Cloud. However, 

Zueger initially described the intruder as Hispanic, wearing baggy shorts, and being 

taller than him, while Red Cloud is Native American, was wearing full-length 

sweatpants, and is 5’11,” the same height as Zueger.

[¶32.] Although each case must be considered on its distinct facts, we have 

previously considered the accuracy of victim identifications in other cases, which are 

instructive here. In Reiman, we emphasized that “a unique physical feature” like a 

“drooping eyelid” or a “bald head and tat[t]ooed arm” “renders identification easier 

for the witness.” 284 N.W.2d at 872 (citation omitted). In Doap Deng Chuol, we 

determined that the witness’s description was “sufficiently accurate” despite some 

discrepancies in her recollection of the color of the defendant’s clothing and his 

height because her description was generally accurate. 2014 S.D. 33, ¶ 25, 849 

N.W.2d at 262. We concluded that “these discrepancies go to the weight of the 

evidence and not to the sufficiency of [the] testimony to support [the identification’s] 

admissibility.” Id. Overall, Zueger’s prior description of the intruder was 

sufficiently accurate to weigh in favor of the reliability of his identification.
#29479

-17-

The level of certainty demonstrated by the witness at the confrontation

[¶33.] At the show-up identification, Zueger stated that he was 90–95% 

certain that Red Cloud was the intruder upon seeing Red Cloud from the front. 

After seeing Red Cloud’s back, Zueger stated that he was 110% certain that Red 

Cloud was the intruder. Red Cloud critiques this factor by arguing that witness 

certainty is a poor gauge of accuracy, citing for support Justice Sotomayor’s dissent 

in Perry, 565 U.S. at 263–65, 132 S. Ct. at 738–39, stating that “jurors place the 

greatest weight on eyewitness confidence in assessing identifications even though 

confidence is a poor gauge of accuracy[.]”4 However, we determine that Zueger’s 

identification was sufficiently reliable even without consideration of this factor and 

therefore decline to address it further.

The length of time between the crime and the confrontation

[¶34.] The basement encounter occurred shortly before 5:00 a.m., and 

Zueger’s identification occurred at approximately 8:00 a.m. the same day. The 

length of time between the crime and the confrontation was approximately three 

hours. In Reiman, we concluded that ten days between the crime and confrontation 

4. Recent research supports Red Cloud’s argument that eyewitness certainty 

may not be a good indicator of identification reliability, and some states, 

including Vermont, Kansas, and Utah, have formally abandoned 

consideration of this factor for that reason. See State v. Discola, 184 A.3d 

1177, 1189 (Vt. 2018); State v. Ramirez, 817 P.2d 774, 781 (Utah 1991), 

holding clarified by State v. Antonio Lujan, 459 P.3d 992, 999–1000 (Utah 

2020) (recognizing that the new Utah Rule of Evidence 617 created an 

evidentiary standard for assessing the reliability and admissibility of 

eyewitness identifications with Ramirez’s due process considerations as a 

constitutional backstop—this new evidentiary standard does not include 

consideration of witness certainty in the reliability analysis); State v. Hunt, 

69 P.3d 571, 575–76 (Kan. 2003) (adopting the Ramirez constitutional 

analysis before its clarification in Antonio Lujan).
#29479

-18-

was not “unreasonably remote” so as to call the reliability of the identification into 

question. 284 N.W.2d at 872. Therefore, the short length of time between the crime 

and Zueger’s identification of Red Cloud supports the reliability of the 

identification.

Weighing all factors under the totality of the circumstances

[¶35.] Considering all but the certainty factor, Zueger’s identification of Red 

Cloud was reliable and did not create a substantial likelihood of irreparable 

misidentification. Although Zueger did not have an extensive opportunity to 

observe the intruder and his attention was divided between the intruder and the 

shovel the intruder was carrying, Zueger’s description was still generally accurate 

when compared to Red Cloud’s characteristics. This accuracy, in addition to only 

three hours having passed between the crime and Zueger’s identification of Red 

Cloud, renders his identification sufficiently reliable.

[¶36.] While we have determined that under the Neil factors, Zueger’s

identification of Red Cloud was sufficiently reliable to outweigh the suggestive and 

unnecessary nature of the show-up identification conducted, we take this 

opportunity to discourage the unnecessary use of this type of identification process 

by law enforcement. It is advantageous to use a more reliable process, such as a 

photo line-up, when it is reasonably possible to do so. The penalty for failure to do 

so may be suppression of the impermissible identification.

Exhibit 15

[¶37.] Red Cloud argues that the circuit court’s failure to send Exhibit 15 to 

the jury was prejudicial error and that the court abused its discretion by not 
#29479

-19-

granting Red Cloud’s motion for a mistrial on that ground. Red Cloud contends that 

he was prejudiced because the jury was deprived of the opportunity to consider the 

contents of the exhibit, which specifically documented that Red Cloud’s DNA was 

not found on either shovel handle tested. Red Cloud argues that this was a “major 

fact” that “in all probability, produced some effect on the verdict.”

[¶38.] The State responds that Red Cloud was not prejudiced by the error 

because Exhibit 15, even if sent to the jury, was only partially supportive of Red 

Cloud’s arguments while also containing damaging evidence against him. 

Additionally, the State argues that the DNA expert who authored the report 

testified to both the bicycle and shovel results before the jury and that the 

information was fresh in the jurors’ minds due to the short trial and the DNA 

expert being the last witness to testify. Therefore, the State argues that while 

failing to send Exhibit 15 to the jury for its consideration was error, it did not 

prejudice Red Cloud.

[¶39.] “The denial of a motion for mistrial will not be overturned unless there 

is an abuse of discretion. Motions for mistrial are within the discretion of the trial 

judge and will not be granted unless there is a showing of actual prejudice to the 

defendant.” State v. Thomas, 2019 S.D. 1, ¶ 27, 922 N.W.2d 9, 17 (citations 

omitted). When a circuit court examines whether to grant a mistrial, it must find 

error “which, in all probability, produced some effect upon the jury’s verdict and is 

harmful to the substantial rights” of the defendant in order to grant the mistrial. 

Id. (citations omitted).

[¶40.] Here, the circuit court stated in response to the motion for a mistrial:
#29479

-20-

I agree that there was error there. I don’t find it has an effect on 

the jurors. Even if it did have an effect on the jurors, it would 

not rise to the level that it infringes the defendant’s substantial 

rights to a fair trial in this case. So I’m going to deny that 

motion for a mistrial.

Based on our review of the record, we conclude that the circuit court did not abuse 

its discretion. The last witness to testify in Red Cloud’s trial was the DNA expert, 

who explained the contents and conclusions in Exhibit 15. Exhibit 15 did provide 

that the DNA results on the two shovels were inconclusive; however, the DNA 

expert testified to those results and was cross-examined by Red Cloud regarding the 

two shovel swabs and their inconclusive results. And, regardless, Zueger had 

testified that neither of the shovels tested looked like the one he saw the intruder 

holding. Moreover, Exhibit 15 revealed that Red Cloud’s DNA matched that on the 

bicycle found outside the Zuegers’ sliding glass door. Therefore, it was not an abuse 

of discretion for the circuit court to determine that the exclusion of Exhibit 15 from 

jury deliberations, while error, did not warrant a mistrial.

Part II Habitual Offender Information

[¶41.] Red Cloud contends that the circuit court erred in denying his motion 

for judgment of acquittal made after completion of the State’s case-in-chief at his 

part II habitual offender trial. Red Cloud argues that the State failed to produce 

any evidence that Red Cloud had been discharged from prison, jail, probation, or 

parole for either of his two prior felonies within “the fifteen-year time period 

required by SDCL 22-7-9.” The circuit court determined that this time period was 

for the court to decide, not a factual determination for the jury, and that the issue 

should have been brought in a motion to dismiss prior to trial. Red Cloud argues in 
#29479

-21-

response that he could raise the issue at any time because State v. Loop, 422 

N.W.2d 420, 424 (S.D. 1988), allows a defendant to attack the validity of a prior 

conviction pretrial or at trial. Yet, Red Cloud also argues that because whether he 

was released from supervision within the last 15 years is a question of fact, the 

State was required to present evidence to the jury showing compliance with SDCL 

22-7-9.

[¶42.] The State responds that it was not required to prove at the jury trial 

that Red Cloud had been released from supervision within the last 15 years; rather, 

the “sole issue in habitual offender cases is whether the defendant is the same 

person as alleged in the habitual criminal information.” (quoting State v. Moves 

Camp, 376 N.W.2d 567, 570 (S.D. 1985) (cleaned up)). Although the State 

acknowledges that SDCL 22-7-9 provides that a prior conviction cannot be 

considered unless the defendant was discharged from supervision within 15 years of 

the date of the principal offense, the State argues that it was not required to prove 

compliance with this requirement at trial.

[¶43.] Under SDCL 22-7-12, a defendant has a “right to a trial by jury on the 

issue of whether the defendant is the same person as alleged in the habitual criminal 

information.” (Emphasis added.) Applying this statute, this Court noted in State v. 

Garritsen that “the only issue” in a habitual offender trial “is whether the defendant 

is the same person as alleged in the habitual criminal information . . . .” 421 

N.W.2d 499, 501 (S.D. 1988) (cleaned up); accord Moves Camp, 376 N.W.2d at 570. 

Therefore, the circuit court properly rejected Red Cloud’s contention that the jury 

must determine whether his prior convictions could be considered under SDCL 22-
#29479

-22-

7-9. Likewise, the court did not err in denying Red Cloud’s motion for judgment of 

acquittal on this basis. See Doap Deng Chuol, 2014 S.D. 33, ¶ 36, 849 N.W.2d at 

264 (reviewing the denial of a motion for judgment of acquittal de novo).

[¶44.] However, this does not answer Red Cloud’s additional claim that even 

if the jury does not determine the State’s compliance with SDCL 22-7-9, the circuit 

court erred in concluding that he was required to file a motion to dismiss the part II 

information prior to trial to preserve the issue for the court’s review. Under SDCL 

22-7-9, a prior conviction may only be considered for purposes of enhancing a 

defendant’s sentence via a habitual offender information if the defendant was “on 

such prior conviction, discharged from prison, jail, probation, or parole within 

fifteen years of the date of the commission of the principal offense.” This Court has 

“interpreted SDCL 22-7-9 to be a limitations statute designed to preclude the use of 

stale convictions.” Perdue v. State, 341 N.W.2d 382, 383 (S.D. 1983). Thus, a prior 

conviction that falls outside the parameters of SDCL 22-7-9 may not be used to 

enhance a sentence.

[¶45.] In Loop, we explained that “[a] defendant has two opportunities to 

have prior convictions, offered for enhancement purposes, set aside”—“at a pretrial 

hearing, or at the trial on the Count 2 information.” 422 N.W.2d at 424, holding 

overruled in part by State v. Chant, 2014 S.D. 77, ¶ 12, 856 N.W.2d 167, 170 

(holding “that a defendant may only collaterally attack prior convictions used for 

enhancement if he or she was unrepresented by counsel when pleading guilty”). 

While Loop concerned a challenge, on constitutional grounds, to the validity of prior 

convictions, the case nevertheless stands for the proposition that when the State 
#29479

-23-

seeks to use a prior conviction that might not otherwise be valid for enhancement 

purposes, a defendant may challenge the State’s use of that conviction at a pretrial 

hearing or in trial. Thus, the circuit court’s contrary determination that Red Cloud 

could only raise the issue in a pretrial motion to dismiss was erroneous.

[¶46.] Because Red Cloud raised the issue at trial, it was incumbent upon the 

court to determine whether the issue had merit before sentencing Red Cloud on the 

habitual offender information. However, reversal is not necessary here because a 

review of the record before the circuit court at the time of sentencing does not 

support Red Cloud’s contention that the two prior robbery convictions were 

improperly considered for enhancement purposes. According to his presentence 

investigation report (PSI), Red Cloud was released from supervision on both prior 

felony robberies on May 1, 2018. Red Cloud’s counsel advised the court at the 

sentencing hearing that he had “no additions or corrections” to the PSI. 

Importantly, Red Cloud did not assert to the circuit court that he was in fact 

discharged more than 15 years prior to the date of his principal offense. He 

likewise fails to advance such a contention on appeal. Given this record, although 

the circuit court erred in not ruling on the issue, the error was harmless beyond a 

reasonable doubt because the record supports that Red Cloud’s 1994 conviction 

could be used for enhancement purposes. See SDCL 23A-44-14 (“Any error, defect, 

irregularity, or variance which does not affect substantial rights shall be 

disregarded.”).

[¶47.] JENSEN, Chief Justice, and DEVANEY and MYREN, Justices, and 

PORTRA, Circuit Court Judge, concur.
#29479

-24-

[¶48.] SALTER, Justice, deeming himself disqualified, did not participate.

[¶49.] PORTRA, Circuit Court Judge, sitting for SALTER, Justice, 

disqualified.